Opinion
2016–11353 Ind. No. 1091/11
02-05-2020
The PEOPLE, etc., Respondent, v. Jonathan ECHEVARRIA, Appellant.
Randall D. Unger, Kew Gardens, NY, for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot of counsel; Victoria Randall and Kristina A. D'Angelo on the memorandum), for respondent.
Randall D. Unger, Kew Gardens, NY, for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot of counsel; Victoria Randall and Kristina A. D'Angelo on the memorandum), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Joseph A. Zayas, J.), imposed September 28, 2016, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The defendant pleaded guilty to manslaughter in the first degree after entering into a plea agreement with the People. The defendant was sentenced, in accordance with the terms of the plea agreement, to a determinate term of imprisonment of 18 years, to be followed by 5 years of postrelease supervision. On appeal, the defendant contends that his sentence was excessive. The People argue that the defendant's contention is precluded by his appeal waiver and that, in any event, the sentence was not excessive.
A defendant who has validly waived the right to appeal cannot invoke this Court's interest of justice jurisdiction to obtain a reduced sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). However, a waiver of the right to appeal "is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( id. at 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, 1284–1285, 59 N.Y.S.3d 715 ; People v. Blackwood, 148 A.D.3d 716, 716, 48 N.Y.S.3d 709 ). As this Court has repeatedly 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 297 ; see People v. Medina, 161 A.D.3d 778, 779, 76 N.Y.S.3d 629 ).
Here, particularly in light of the defendant's young age and inexperience with the criminal justice system, the relatively terse oral colloquy was insufficient to demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Gions, 177 A.D.3d 769, 110 N.Y.S.3d 338 ; People v. Romelo P., 176 A.D.3d 977, 108 N.Y.S.3d 366 ; People v. Mena, 173 A.D.3d 1217, 1217, 101 N.Y.S.3d 611 ; People v. Mendoza, 169 A.D.3d 717, 717, 91 N.Y.S.3d 697 ; People v. Diasia F., 164 A.D.3d 913, 913–914, 83 N.Y.S.3d 181 ; People v. Ndaula, 158 A.D.3d 650, 650, 67 N.Y.S.3d 854 ). Furthermore, although the record reflects that the defendant executed a written appeal waiver form prior to the Supreme Court's colloquy, the court did not ascertain on the record whether the defendant had actually read the written waiver (see People v. Gions, 177 A.D.3d 769, 110 N.Y.S.3d 338 ; People v. Romelo P., 176 A.D.3d 977, 108 N.Y.S.3d 366 ; People v. Mena, 173 A.D.3d at 1217, 101 N.Y.S.3d 611 ; People v. Mendoza, 169 A.D.3d at 717, 91 N.Y.S.3d 697 ). Under the circumstances, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ).
Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., LEVENTHAL, MILLER, DUFFY and LASALLE, JJ., concur.