People v. Spitzer, 2016–01819

• Court: New York Supreme Court Appellate Division
• Citation: 76 N.Y.S.3d 410 (Mem)
• Decision Date: 05 July 2018
• Parties: The PEOPLE, etc., respondent, v. Alexander SPITZER, appellant.
• Docket Number: Ind. No. 9575/14,2016–01819

163 A.D.3d 591
76 N.Y.S.3d 410 (Mem)

The PEOPLE, etc., respondent,
v.
Alexander SPITZER, appellant.

2016–01819
Ind. No. 9575/14

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

Submitted—June 30, 2017
July 5, 2018

Paul Skip Laisure, New York, N.Y. (David P. Greenberg of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel; Ruby D. Andrade on the memorandum), for respondent.

WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (William Miller, J.), imposed January 11, 2016, upon his

76 N.Y.S.3d 411

plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

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 ; 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. Rocchino, 153 A.D.3d 1284, 59 N.Y.S.3d 715 ; People v. Blackwood, 148 A.D.3d 716, 716, 48 N.Y.S.3d 709 ).

"[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. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297 ). "[A] defendant should [also] ... receive an explanation of the nature of the right to appeal, which essentially advises that this right entails the opportunity to argue, before a higher court, any issues pertaining to the defendant's conviction and sentence and...