People v. Spitzer
| Decision Date | 05 July 2018 |
| Docket Number | Ind. No. 9575/14,2016–01819 |
| Citation | 76 N.Y.S.3d 410 (Mem) |
| Parties | The PEOPLE, etc., respondent, v. Alexander SPITZER, appellant. |
| Court | New York Supreme Court — Appellate Division |
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 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 to have that higher court decide whether the conviction or sentence should be set aside based upon any of those issues ... [and] that appellate counsel will be appointed in the event that he or she were indigent" ( id. ). Finally, "trial courts should then explain the consequences of waiving the right to appeal, i.e., that the conviction and sentence will not receive any further review, and shall be final" ( id. ).
Here, contrary to the defendant's contention, the record of the plea proceeding demonstrates that the defendant understood that the appeal waiver was separate and distinct from those rights automatically forfeited upon a plea of guilty and that the defendant was voluntarily relinquishing that right in consideration for the promised sentence (see People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Byrd, 100 A.D.3d 1013, 1013, 954 N.Y.S.2d 464 ; see also People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297 ). Furthermore, the record of the plea proceeding demonstrates that the defendant received an explanation of the nature of the right to appeal and the consequences of waiving that right (see People v. Rocchino, 153 A.D.3d 1284, 59 N.Y.S.3d 715 ; People v. Stiles, 143 A.D.3d 747, 747, 38 N.Y.S.3d 436 ; People v. Romero–Flores, 128 A.D.3d 1102, 1102, 8 N.Y.S.3d 606 ; People v. McRae, 123 A.D.3d 848, 848–849, 996 N.Y.S.2d 531 ; see also People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297 ). We conclude that the defendant knowingly, voluntarily, and intelligently waived his right...
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