People v. Slade, 2018–08826

• Decision Date: 26 February 2020
• Docket Number: Ind. No. 17-00343,2018–08826
• Parties: The PEOPLE, etc., Respondent, v. Terrell E. SLADE, Appellant.
• Court: New York Supreme Court — Appellate Division

180 A.D.3d 1073
118 N.Y.S.3d 199

The PEOPLE, etc., Respondent,
v.
Terrell E. SLADE, Appellant.

2018–08826
Ind. No. 17-00343

Supreme Court, Appellate Division, Second Department, New York.

Submitted - October 22, 2019
February 26, 2020

118 N.Y.S.3d 200

Mary Z. Raleigh, Warwick, NY, for appellant.

David M. Hoovler, District Attorney, Goshen, N.Y. (William C. Ghee of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, SHERI S. ROMAN, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

180 A.D.3d 1073

Appeal by the defendant from a judgment of the County Court, Orange County (William L. DeProspo, J.), rendered June 14, 2018, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

On appeal, the defendant contends that the enhanced sentence he received after he failed to appear for a probation department interview and a scheduled sentencing date was excessive. The People argue that appellate review of the defendant's contention is precluded because he waived his right to appeal.

A waiver of the right to appeal "is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ;

180 A.D.3d 1074

People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297 ). Although the Court of Appeals has "repeatedly observed that there is no mandatory litany that must be used in order to obtain a valid waiver of appellate rights" ( People v. Johnson, 14 N.Y.3d 483, 486, 903 N.Y.S.2d 299, 929 N.E.2d 361 ), "[t]he best way to ensure that the record reflects that the right is known and intentionally relinquished by the defendant is to fully explain to the defendant, on the record, the nature of the right to appeal and the consequences of waiving it" ( People v. Brown, 122 A.D.3d at 142, 992 N.Y.S.2d 297 ; see People v. Ayala, 172 A.D.3d 1085, 1086, 100 N.Y.S.3d 334 ; People v. Carryl, 169 A.D.3d 818, 819, 93 N.Y.S.3d 703 ).

118 N.Y.S.3d 201

As this Court recently articulated, " ‘a thorough explanation should include an advisement that, while a defendant ordinarily retains the right to appeal even after he or she pleads guilty, the defendant is being asked, as a condition of the plea agreement, to waive that right’ " ( People v. Batista, 167 A.D.3d 69, 76, 86 N.Y.S.3d 492, quoting People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d...