People v. Rivera

• Decision Date: 05 January 2022
• Docket Number: 2019-04124,2022-00038,Ind. No. 18-00225
• Citation: 2022 NY Slip Op 60892 (U)
• Parties: The People of the State of New York, respondent, v. Joemy R. Rivera, appellant. Ind. No. 18-00225
• Court: New York Supreme Court

2022 NY Slip Op 60892(U)

The People of the State of New York, respondent, v. Joemy R. Rivera, appellant.

Ind. No. 18-00225

No. 2022-00038

No. 2019-04124

Supreme Court of New York, Second Department

January 5, 2022

Kenyon C. Trachte, Newburgh, NY, for appellant.

David M. Hoovler, District Attorney, Middletown, NY (Andrew R. Kass of counsel), for respondent.

LEONARD B. AUSTIN, J.P., COLLEEN D. DUFFY, BETSY BARROS CHERYL E. CHAMBERS, WILLIAM G. FORD, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered December 21, 2018 convicting him of gang assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's purported waiver of his right to appeal was invalid, as the record does not demonstrate that the waiver was made knowingly, intelligently, and voluntarily (see People v Bradshaw, 18 N.Y.3d 257, 264). The County Court's oral colloquy mischaracterized the nature of the appeal waiver as an absolute bar to the taking of a direct appeal (see People v Bisono, 36 N.Y.3d 1013; People v Thomas, 34 N.Y.3d 545; People v Brenner, 193 A.D.3d 875). Further, the written waiver of the right to appeal and an on off-the-record conversation with the defendant's counsel are not sufficient to uphold the waiver, as they are not permissible substitutes for the court's proper appraisal of the nature and scope of the appeal waiver (see People v Stinson, 189 A.D.3d 1271; People v Neilson, 167 A.D.3d 779, 780). In addition, the written waiver of the right to appeal also mischaracterizes the nature of the waiver as an absolute bar to the taking of a direct appeal (see People v Bisono, 36 N.Y.3d at 1015-1016; People v Thomas, 34 N.Y.3d at 566; People v Brenner, 193 A.D.3d at 875). Thus, the purported waiver does not preclude appellate review of the defendant's claim that his absolute right to be present at all material stages of the proceedings was violated (see People v Fuller, 163 A.D.3d 715).

The defendant waived his right to contest the purported violation of his right to be present at all material stages of his trial by pleading guilty. "As a general rule, a plea of guilty, intelligently and voluntarily entered, operates as a waiver of certain fundamental constitutional defects and bars the later assertion of constitutional challenges to pretrial proceedings" (People v Thomas, 74 A.D.2d 317 319, affd 53 N.Y.2d 338 [citations omitted]; see Tollet v Henderson, 411 U.S. 258; People v Best, 89 A.D.2d 1018; see also Parker v North...