Opinion
2015-07-01
The PEOPLE, etc., respondent, v. Joseph FORTIER, appellant.
Mark Diamond, New York, N.Y., for appellant. Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), for respondent.
Mark Diamond, New York, N.Y., for appellant. Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), for respondent.
REINALDO E. RIVERA, J.P., PETER B. SKELOS, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered July 1, 2014, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment 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). “An appellate waiver meets this standard when a defendant has ‘a full appreciation of the consequences' of such waiver” (People v. Bradshaw, 18 N.Y.3d at 264, 938 N.Y.S.2d 254, 961 N.E.2d 645, quoting People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022; see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172; People v. Brown, 122 A.D.3d at 136, 992 N.Y.S.2d 297).
Further, an appeal waiver is the intentional and voluntary relinquishment or abandonment of “a known right that would otherwise survive a guilty plea” (People v. Lopez, 6 N.Y.3d at 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Brown, 122 A.D.3d at 137, 992 N.Y.S.2d 297). It is the responsibility of the judge presiding over the plea and waiver to make it clear to the defendant that an appeal waiver “ ‘is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” (people v. bradshaw, 18 n.y.3d At 264, 938 n.y.s.2d 254, 961 N.E.2d 645, quoting People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; see People v. Brown, 122 A.D.3d at 137, 992 N.Y.S.2d 297). “Thus, an appeal waiver is not valid where, for example, the court lumps the waiver of the right to appeal in with ‘the panoply of trial rights automatically forfeited upon pleading guilty,’ such as by misadvising the defendant: ‘[W]hen you plead guilty you waive your right to appeal’ ” (People v. Brown, 122 A.D.3d at 137, 992 N.Y.S.2d 297, quoting People v. Lopez, 6 N.Y.3d at 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
Here, at the plea proceeding, the County Court advised the defendant that, “[b]y pleading guilty, sir, you waive, you give up your right—by pleading guilty you're telling everyone in the world that you are waiving and giving up your right to seek appellate review of decisions by Judges on your case.” Under these circumstances, notwithstanding the defendant's execution of a written waiver, the purported waiver of the right to appeal was invalid and, thus, does not preclude review of his claim that his sentence was excessive. However, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's contention that the final order of protection is invalid because the County Court failed to articulate on the record its reasons for issuing the order pursuant to CPL 530.13(4) is unpreserved for appellate review, since the defendant did not raise this issue at sentencing or move to amend the final order of protection on this ground ( seeCPL 470.05[2]; People v. Nieves, 2 N.Y.3d 310, 316–318, 778 N.Y.S.2d 751, 811 N.E.2d 13; People v. Sweeney, 106 A.D.3d 841, 842, 966 N.Y.S.2d 120; People v. Reynolds, 85 A.D.3d 825, 925 N.Y.S.2d 553; People v. Decker, 77 A.D.3d 675, 908 N.Y.S.2d 361).