People v. Ramos

• Decision Date: 05 December 1989
• Citation: 152 A.D.2d 209,548 N.Y.S.2d 166
• Parties: The PEOPLE of the State of New York, Respondent, v. Moses RAMOS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 166

548 N.Y.S.2d 166

152 A.D.2d 209

The PEOPLE of the State of New York, Respondent, v. Moses RAMOS, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Dec. 5, 1989.

Ira Mickenberg, of counsel (Jonathan A. Willens with him on the brief; Office of the Appellate Defender, attorneys), for defendant-appellant

Howard L. Perzan, of counsel (Ann M. Donnelly and Patricia Curran with him on the brief; Robert M. Morgenthau, Dist. Atty., attorney), for respondent.

Before CARRO, J.P., and ROSENBERGER, ELLERIN, WALLACH and SMITH, JJ.

ROSENBERGER, Justice.

Defendant-appellant appeals from his conviction of attempted robbery in the second degree which was entered upon his guilty plea after his motions to suppress the complainant's identification of him and his statements to the police were denied. The People contend that the defendant has waived his right to appeal as part of the plea bargain and that such a waiver, under the Court of Appeals recent decision in People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989], is valid and enforceable.

In People v. Seaberg, the Court of Appeals could "find no public policy precluding defendants from waiving their rights to appeal as a condition of the plea and sentence bargains" (74 N.Y.2d at 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022, supra ). Enforcement of the waiver of appellate review as part of a plea or sentence bargain is deemed to advance the State's legitimate interest in seeking a final and prompt conclusion of criminal litigation where the bargain is reasonable and appropriate. (See People v. Frederick, 45 N.Y.2d 520, 525, 410 N.Y.S.2d 555, 382 N.E.2d 1332 [1978]. However, the court specified that such a waiver "to be enforceable, must not only be voluntary but also knowing and intelligent", and the court emphasized the trial court's role in insuring that it meet those requirements "by considering all the relevant facts and circumstances surrounding the waiver, including the nature and terms of the agreement and the age, experience and background of the accused (citations omitted)." (People v. Seaberg, supra, at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022.)

The minutes of the plea allocution herein are devoid of any evidence that the defendant's waiver of his right to appellate review was knowing, intelligent and voluntary. Although Supreme Court was careful to elicit confirmation from the defendant that he understood the ramifications of his guilty plea, the trial rights which he would forfeit and the effect on his status as a felony offender should he be convicted of another felony, the court failed to do so regarding the waiver of defendant's right to appellate review. The waiver of this important right was only raised by defense counsel after the defendant had entered his plea and had been arraigned on the predicate felony statement filed by the district attorney. Defense counsel merely noted that the record should reflect "that I have agreed ... as part of this plea bargain, the defendant will not appeal any decision as a result of the pre-trial hearings and motions that we have conducted." The defendant was never asked if he had discussed this with counsel, or understood the implications of this waiver, and, most importantly, whether he in fact agreed to it.

In People v. Seaberg, the Court of Appeals upheld the waiver of appellate review even though the defendant, Seaberg, had not been a participant in the court's colloquy with his lawyer when the details of the bargain, allowing the defendant a conditional discharge if he successfully completed a rehabilitation program for alcoholics, were stated. Other evidence in the record, however, persuaded the court that the defendant appreciated the consequences of the bargain, inasmuch as there had been a seven-month adjournment between the verdict and sentencing in order for the defendant to explore whether he would be eligible for a rehabilitation program. The defendant had ample opportunity after the prosecutor agreed to the sentencing arrangement, to discuss it with his attorney and consider the alternatives. Moreover, before the sentence was imposed, the defendant expressed gratitude for the favorable treatment he had received and his intention to abide by the proposed sentence.

In this case, the defendant's plea was taken only ten days after Supreme Court denied the motion to suppress his statements, and only two days after his motion to suppress the pretrial identification was denied. Nothing in the record herein indicates that the defendant understood the consequences of waiving his right to appellate review, or that he even knew...