People v. Williams, 5206.

• Decision Date: 26 February 2009
• Docket Number: 5206.
• Citation: 2009 NY Slip Op 01398,874 N.Y.S.2d 63,59 A.D.3d 339
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. McKINLEY WILLIAMS, Appellant.
• Court: New York Supreme Court — Appellate Division

59 A.D.3d 339

874 N.Y.S.2d 63

2009 NY Slip Op 01398

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. McKINLEY WILLIAMS, Appellant.

5206.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided February 26, 2009.

Judgment, Supreme Court, Bronx County (Caesar Cirigliano, J.), rendered September 25, 2007, convicting defendant, upon his plea of guilty, of two counts of criminal possession of a weapon in the third degree, and sentencing him to a term of five years' probation, unanimously affirmed.

Following the denial of a suppression hearing, defendant agreed to plead guilty as indicated, in full satisfaction of the indictment. During the plea proceeding in August 2007, defendant acknowledged the various trial rights that he was waiving, and that he was doing so after consulting with his attorney. He then admitted to possessing two weapons in the Bronx on May 2, 2006. The following colloquy ensued:

"THE COURT: The other thing I want to tell you is if you had gone to trial, even if you had a hearing in this matter, you would have had a right to an appeal. By taking this plea it's final, there's no appeal from this; understand?

"DEFENDANT: Yes, sir.

"THE COURT: This is something you want to do freely?

"DEFENDANT: Yes, sir.

"THE COURT: And in open court and you're saying to me Judge, this is it; is that right?

"DEFENDANT: Yes, sir."

Defendant argues now that the purported waiver of his right to appeal was invalid and does not preclude review of the court's suppression decision, inasmuch as the court conflated the right to appeal with those rights automatically forfeited by pleading guilty. Defendant is correct. Although our independent review establishes that the search warrant was supported by probable cause, we write simply to focus attention on the recurrent fusing, during allocution, of the defendant's right to appeal (in this case, his right to appeal the order denying his suppression motion) with those rights waived by a guilty plea in cases where waiving the right to appeal is a condition of the plea bargain. To be sure, courts must inform defendants taking a plea of the rights waived by pleading guilty, such as the right to remain silent, the right to confront one's accusers and the right to a jury trial. In addition, however, courts must not only inform the defendants of their right to appeal, but must also elicit on the record that they are voluntarily, knowingly and intelligently waiving it as a condition of taking the plea.

It is well settled that a defendant may waive the right to appeal as part of a bargained-for plea agreement (see People v Kemp, 94 NY2d 831 [1999]), so long as the record demonstrates that it was made knowingly, intelligently and voluntarily (see People v Muniz, 91 NY2d 570 [1998]). Though a trial court need not engage in any particular litany when apprising a defendant pleading guilty of the individual rights abandoned, it must make certain that the defendant's understanding of the terms and conditions of a plea agreement are evident on the face of the record (see People v Callahan, 80 NY2d 273, 280 [1992]). The record must establish, for example, that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty—the right to remain silent, the right to confront one's accusers and the right to a jury trial (see People v Lopez, 6 NY3d 248, 256-257 [2006]).

In the case at hand, defendant did not make a valid waiver of his right to appeal the suppression order since the court did not distinguish the appeal...