The People, Appellant,v.Jeffrey Bryant, Respondent.

Brief

N.Y.December 14, 2016

CYRUS R. VANCE, JR. DISTRICT ATTORNEY Hon. John P. Asiello Clerk of the Court Court of Appeals Hall 20 Eagle Street Albany, New York 12207 Dear Mr. Asiello: DISTRICT ATTORNEY COUNTY OF NEW YORK ONE HOGAN PLACE New York, N.Y. 10013 (212) 335-9000 September 1, 2016 Re: People v. Je.ffmy Bryant N.Y. Co. Ind. No. 5646/13 APL-2016-00106 By permission of the Honorable Peter Tom, Acting Presiding Justice of the Appellate Division, First Department, the People appeal from a March 1, 2016, order of that court. By that order, the Appellate Division modified a June 17, 2014, judgment of the Supreme Court, New York County (Gregory Carro, J .), convicting defendant, upon his negotiated plea of guilty, of four counts of Grand Larceny in the Fourth Degree (Penal Law§ 155.30[8]) and sentencing him to four consecutive indeterminate prison terms of from one to three years, yielding an aggregate sentence of from four to twelve years. The Appellate Division ruled that defendant's waiver of his right to appeal the length of his sentence was invalid as a matter of law. People v. Bryant, 137 A.D.3d 401, 401-02 (1st Dept. 2016). Then, exercising its interest-of-justice powers, the Appellate Division reduced defendant's prison sentence to an aggregate term of from three to nine years. Id at 402. By this Court's order of June 22, 2016, this appeal has been calendared for summary ("SSM") treatment pursuant to section 500.11 of this Court's Rules of Practice (''Rules"). At the outset, the People respectfully object to SSM treatment, because this appeal is clearly of statewide importance. Rule 500.11(b)(3). It presents significant issues regarding the legal standard to be applied in determining the enforceability of a defendant's waiver of his right to appeal, which, as this Court has long observed, implicates "public interest concerns underlying plea bargains generally." People v. Seaberg, D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 2 September 1, 2016 74 N.Y.2d 1, 10 (1989). We submit that this Court should address and resolve these issues after full briefing and argument. QUESTION PRESENTED Is a criminal defendant’s waiver of his right to appeal valid when the defendant executed a detailed written waiver clearly stating his understanding that, as a condition of his bargained-for plea agreement, he was giving up his right to appeal, separate and apart from other rights automatically forfeited upon his guilty plea, and he verbally affirmed at his plea proceeding in response to inquiries by the court that he understood he was waiving his right to appeal, that he had consulted with his attorney about the meaning of the waiver, and that he had no additional questions for the court regarding the significance of the waiver? FACTS AND PROCEDURAL HISTORY1 A. Defendant’s Crimes2 The underlying facts of this case are not in dispute. From October 2012 through October 2013, defendant stole fifteen luxury cars from inside parking garages across Manhattan. On at least seven of those occasions, defendant targeted garages that were inside dwellings, and he stole those vehicles from nonpublic areas within those garages. Overall, the cars he stole included a 2009 Volvo, 2013 BMW X5, 2013 Land Rover, 2011 Chevrolet Equinox, 2008 Acura, 2013 Nissan Altima, 2004 Volkswagen Touareg, and a 2009 Audi Q7. He also stole two Infiniti automobiles and four late-model Mercedes-Benz cars. On October 30, 2013, at around 1:35 a.m., defendant was ultimately arrested when police officers located him after he rammed a stolen Audi through the gate of a parking garage. Upon his arrest, defendant stated, “The car is not mine. I took it.” He later admitted to stealing all of the cars described above by casing garages for the “best” cars with the keys still inside and then stealing them once the garage attendant appeared to be distracted. Cameras located inside several of the garages he targeted captured 1 Parenthetical references preceded by “A” and “SA” are to the People’s Appendix and Supplemental Confidential Appendix, respectively. 2 The following facts derive from the felony complaint (A045-049), indictment (A050- 064), the People’s Voluntary Disclosure Form (A065-077), and the Pre-Sentence Report prepared by the Department of Probation (SA001-004). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 3 September 1, 2016 images of defendant, and defendant identified himself in those photographs. Defendant claimed to have driven the first five cars he stole until they ran out of gas. In one instance, defendant recounted, he realized that a Mercedes-Benz he had stolen was “too hot” because it had vanity license plates, so he quickly abandoned it. Defendant told detectives that after an acquaintance named “Mano” informed him that he could get money for the cars, defendant stole additional vehicles, which he transferred to Mano in exchange for remuneration. Defendant believed his activities with Mano were “possibly” linked to a “chop shop” in Pennsylvania. By New York County Indictment No. 5646/13, filed on March 3, 2014, a grand jury charged defendant in a 39-count indictment as follows: seven counts of Burglary in the Second Degree; thirteen counts of Grand Larceny in the Third Degree; thirteen counts of Grand Larceny in the Fourth Degree; and two counts each of Petit Larceny, Criminal Possession of Stolen Property in the Third Degree, and Criminal Possession of Stolen Property in the Fourth Degree. B. The Guilty Plea, Waiver of Right to Appeal, and Sentencing On May 28, 2014, defendant appeared with counsel, Michael Hurwitz, Esq., before Justice Gregory Carro. At the outset, the People informed the court of a plea offer that had “been open” to defendant for more than one month: if defendant pled guilty to four counts of fourth-degree grand larceny in full satisfaction of the indictment, the People would recommend an indeterminate prison sentence of from one to three years on each count, with the four sentences to run consecutively. After a consultation between defense counsel and defendant, counsel informed the court that defendant wished to plead guilty pursuant to the People’s offer. Defendant confirmed that he understood the terms of the proposed plea and that no one had forced him to take the plea or had made any other promises to induce him to plead guilty (A079-080). The court then informed defendant of the rights he was forfeiting as a result of his guilty plea. Specifically, Justice Carro explained to defendant that by pleading guilty he was abandoning his right to a jury trial, which included the right to confront witnesses, to present a defense, to testify on his own behalf or remain silent, and to compel the People to prove their case beyond a reasonable doubt. The judge asked defendant if he understood that he was giving up those rights, and after defendant equivocated, the court provided defendant an opportunity to consult with counsel (A081). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 4 September 1, 2016 At that point, the People requested that the court also apprise defendant of what his sentencing exposure would be if he were to proceed to trial. In response, the judge told defendant, “Here’s an explanation. I can’t count that high. Let’s put it that way. You are charged with violent crimes. Just as to burglary in the second [degree] you know you face up to 15 years” (A081). The People then remarked that their offer would no longer be available “after today,” and the judge advised defendant, “Sir, if you don’t want to do this, if you feel that it is not in your best interest, don’t plead guilty. It’s up to you” (A082). Defense counsel asked for “a moment,” and after conferring with defendant, counsel stated that defendant was ready to proceed with the plea (A082). The judge again asked defendant if he understood that by pleading guilty he was giving up his right to a trial, which included the right to cross examine witnesses, to raise a defense, and to testify on his own behalf or remain silent. Defendant answered, “Yes.” Defendant also confirmed that he understood that his guilty plea had “the same legal effect” as a conviction after a trial and would result in having felony convictions on his record (A082-083). Defendant then provided a detailed allocution of the facts of the four counts to which he pled guilty. He admitted that on June 23, 2013, he stole a Volvo from the lower level of a parking garage on East 25th Street (A083). He also admitted that on different dates he stole a Volkswagen from inside a parking garage on West 148th Street, an Infiniti from inside a garage on Park Avenue, and an Audi from inside 673 Saint Nicholas Avenue. He confirmed that each of the four cars was worth more than $100 (A083-084). Once the factual allocution was completed, the court turned to defendant’s waiver of his right to appeal (A085). The People informed the court that defense counsel had been provided four copies of the written “waiver of appeal,” and the following colloquy ensued: THE COURT: All right. Sir, you understand that also as a part of this you are waiving your right to appeal. You understand that this conviction, or these convictions will be final, that a court will not review what we have done here, other than some residual rights that remain? Do you understand that? D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 5 September 1, 2016 DEFENDANT: Yes. THE COURT: Have you gone over that with your attorney? DEFENDANT: Yes. THE COURT: There is a document entitled waiver of appeal. I see that you executed that document. Do you have any questions about it? DEFENDANT: No. (A085). The judge then scheduled a date for sentencing (A085). Defendant and his attorney each signed two different mirror copies of the same written waiver tilted “Waiver of Right to Appeal.” Both copies were dated May 28, 2014, the same day as the plea. One of the copies was also stamped “Hon. G. Carro” directly underneath defendant’s signature (see A088 [written waiver with the judge’s stamp] and A087 [written waiver without the stamp], collectively “Written Waiver”).3 The written waiver read as follows: I hereby waive my right to appeal from this judgment of conviction. I understand that the right to appeal is separate and distinct from other rights automatically forfeited upon a plea of guilty, such as the right to remain silent, the right to confront one’s accusers and the right to a jury trial. I understand that I would ordinarily retain my right to appeal even after pleading guilty, but in this case I am being offered a plea by the prosecution with the condition that I give up this right. I also understand that by waiving my right to appeal, I am giving up the right to raise on appeal a number of claims that I could otherwise raise even after a guilty plea. In particular, I understand that I am waiving my right to ask the Appellate Division to review the terms of the 3 The Supreme Court file contains the original copy of the waiver with Justice Carro’s stamp on it and of the waiver without the stamp. The People’s Appendix includes photocopies of both documents (see A087, A088). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 6 September 1, 2016 plea and reduce my sentence, and my right to appeal the denial of any suppression motion I made. I understand that this waiver does not apply to any of the four following issues: a constitutional speedy trial claim; a challenge to the legality of the sentence promised by the judge; an issue as to my competency to stand trial; or the voluntariness of this waiver. I execute and sign this waiver knowingly, intelligently and voluntarily after being advised by the Court and after consulting with my attorney, MICHAEL HURWITZ, standing beside me. I have had a full opportunity to discuss these matters with my attorney and any questions I may have had have been answered to my satisfaction. I have agreed to give up my appellate rights because I am receiving a favorable plea and sentence agreement. (A087, A088). On June 17, 2014, defendant appeared with counsel before Justice Carro, who imposed the promised prison sentence of from four to twelve years (A090-092).4 Ten days later, on June 27th, defendant filed a pro se motion to withdraw his plea, which Justice Carro denied in a written Decision and Order [“Order”] dated November 19, 2014.5 The court’s order provided a detailed account of the plea and sentencing proceedings and concluded that defendant’s decision to plead guilty was knowing, intelligent, and voluntary (A098-101). The court noted that defendant’s claim that he did not understand “the ramifications” of his plea and sentence was belied by the fact that defendant had sent a pro se letter to the court on August 7, 2014, objecting to the 4 At sentencing, defendant stated that he was “not ready to be sentenced,” and both he and his counsel asked if defendant could withdraw his plea (A090-091). The court denied that application, finding that defendant’s guilty plea was knowing and voluntary (A091-092). On appeal, defendant abandoned any claim that his plea was unknowing or involuntary. 5 Defendant incorrectly filed his post-judgment motion pursuant to CPL 220.60(3), which pertains only to plea withdrawal requests made “before” sentencing (A098; see A093- 096). Nevertheless, the court addressed the merits of defendant’s claim (A098). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 7 September 1, 2016 imposition of consecutive versus concurrent sentences. The judge observed that, despite some spelling and grammatical errors, the letter exhibited defendant’s grasp of the “concept of consecutive and concurrent sentences” and “succinctly and clearly articulate[d] his objection to his sentence and [his] plea for a remedy” (A0101). The court’s order also recounted the colloquy from the plea proceeding pertaining to defendant’s waiver of his right to appeal. Justice Carro, who had presided over the plea, described how defendant had confirmed during the plea colloquy that “he had reviewed the [appeal] waiver with his attorney” and understood it to mean that his conviction would be “final.” “Thereupon,” Justice Carro explained, “the waiver was executed and the court scheduled sentence” (A100). C. The Appellate Division’s Decision On appeal to the Appellate Division, First Department, defendant claimed that his waiver of appeal was invalid and that his bargained-for sentence was excessive. Regarding his appeal waiver, defendant argued that the record failed to establish that the waiver was knowing and voluntary, because the court had not adequately explained the nature of the right to appeal and specifically failed to explain that his right to appeal was separate and distinct from the other trial rights automatically forfeited by his guilty plea (A018-022). In his brief, defendant included the text from the written waiver he executed, which described the right to appeal and expressly stated that the waiver of appeal was distinct from the rights forfeited by his plea (A012-013 n. 2). Nonetheless, he claimed that the “mere existence of a written appeal waiver” did not render his waiver knowing and voluntary (A022-023). A four-justice majority of the Appellate Division agreed with defendant, ruling that his waiver of the right to appeal was unenforceable. The majority noted Justice Carro’s statement during the plea colloquy that “as part of this you are waiving your right to appeal,” and concluded that the statement “expressly undercut the principle” that the right to appeal was separate from the many trial rights automatically extinguished upon a guilty plea. Bryant, 137 A.D.3d at 401-02. The majority also found defendant’s signed written waiver to be “no substitute for an on-the-record explanation of the nature of the right to appeal,” because the record supposedly did not clearly reflect whether defendant signed the written waiver before or after “the colloquy regarding his right to appeal.” Id. at 402. Having found defendant’s excessive-sentence claim reviewable, the majority reduced defendant’s sentence, in the interest of justice, to an aggregate term of from three to nine years, without explaining why defendant’s bargained-for sentence warranted such a reduction. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 8 September 1, 2016 Justice Peter Tom dissented, finding that “[t]he record contradict[ed] the majority’s conclusion that defendant was not properly apprised of the implications of waiving his right to appeal.” Id. First, Justice Tom observed that the oral colloquy pertaining to the appeal waiver in this case “track[ed]” the appeal waiver colloquy in People v. Nicholson [companion case to People v. Lopez], 6 N.Y.3d 248, 254-55 (2006), in which this Court upheld the validity of the waiver. Justice Tom opined that the colloquy here “even exceed[ed]” that in Nicholson, because, unlike in Nicholson, defendant executed a detailed written appeal waiver and orally “acknowledged before the Court that he fully understood the terms of the written waiver after consulting with his attorney.” Bryant, 137 A.D.3d at 403 (Tom, J., dissenting). Justice Tom further noted that although a judge may orally explain to a defendant that “the right to appeal is distinct from ‘the panoply of trial rights automatically forfeited upon pleading guilty,’” the Court of Appeals has held that it is “‘even better to secure a written waiver including such explanation.’” Id. (quoting Lopez, 6 N.Y.3d at 257). Applying that principle here, Justice Tom found that defendant’s written waiver dispelled any arguable ambiguity in the oral colloquy, because the written waiver expressly acknowledged, among other things, that defendant understood that his right to appeal was separate and distinct from other trial rights, and that he was knowingly and voluntarily giving up his right to ask the Appellate Division to reduce his sentence “as a bargained-for condition of [his] plea.” Id. at 403-04 (citation omitted). Thus, Justice Tom concluded, defendant’s appeal waiver was valid as a matter of law and precluded the Appellate Division from considering his excessive-sentence claim. ARGUMENT THE APPELLATE DIVISION MAJORITY ERRED AS A MATTER OF LAW IN FAILING TO ENFORCE DEFENDANT’S KNOWING AND VOLUNTARY WAIVER OF HIS RIGHT TO APPEAL. In determining that defendant’s appeal waiver was invalid, the majority in the Appellate Division made a fundamental error of law that conflicts with the longstanding precedent of this Court. To begin, this Court has jurisdiction to review this error. Pursuant to CPL 470.35, the Court of Appeals may only review questions of law. Here, the sole question presented is whether a defendant’s appeal waiver was valid. This Court has repeatedly treated that issue as a reviewable question of law. See, e.g., People v. Sanders, 25 N.Y.3d 337, 341 (2015); Lopez, 6 N.Y.3d at 248; Seaberg, 74 N.Y.2d at 1. Thus, the Appellate D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 9 September 1, 2016 Division’s erroneous determination that defendant’s appeal waiver was invalid is properly before this Court. The law in this area is well-settled. A defendant may, as part of a bargained-for plea agreement, waive his right to appeal his conviction and the length of his sentence. Lopez, 6 N.Y.3d at 255. Indeed, “the public interest concerns underlying plea bargains generally are served by enforcing waivers of the right to appeal” because “the State’s legitimate interest in finality” requires “holding defendants to bargains they have made.” Seaberg, 74 N.Y.2d at 10; Lopez, 6 N.Y.3d at 255. Waivers of appeal are valid and enforceable as long as they are made “knowingly, intelligently and voluntarily.” People v. Bradshaw, 18 N.Y.3d 257, 264 (2011) (quoting Lopez, 6 N.Y.3d at 256); People v. Johnson, 14 N.Y.3d 483, 486 (2010). A court is not required to “‘engage in any particular litany’” to ensure that a defendant’s waiver meets these criteria. Sanders, 25 N.Y.3d at 341 (quoting Lopez, 6 N.Y.3d at 256). Instead, a court need only broach the subject on the record and ensure that the defendant understands the appellate rights he is waiving. Id.; Bradshaw, 18 N.Y.3d at 267; Nicholson, 6 N.Y.3d at 254-55. To be sure, the record must establish that a defendant who waives his right to appeal has “a full appreciation of the consequences” of the waiver and recognizes that his waived appellate rights are “separate and distinct from those rights automatically forfeited upon a plea of guilty.” Bradshaw, 18 N.Y.3d at 264 (quotation marks omitted); Lopez, 6 N.Y.3d at 256. The record is sufficient on that score if a court’s oral colloquy “describ[es] the nature of the right being waived without lumping that right into the panoply of trial rights automatically forfeited upon pleading guilty.” Nicholson, 6 N.Y.3d at 257; Sanders, 25 N.Y.3d at 341. A reviewing court’s evaluation of an appellate waiver should not rely solely on the trial court’s oral colloquy; rather, this Court has emphasized that appellate courts must consider “all the relevant facts and circumstances surrounding the waiver.” Seaberg, 74 N.Y.2d at 11; see Sanders, 25 N.Y.3d at 341-42. These factors “includ[e] the nature and terms of the agreement,” Bradshaw, 18 N.Y.3d at 264-65 (quoting Seaberg, 74 N.Y.2d at 11), whether the defendant signed a “detailed written waiver,” People v. Ramos, 7 N.Y.3d 737, 738 (2006); Lopez, 6 N.Y.3d at 257, and the participation of defense counsel in the execution of the written waiver, Ramos, 7 N.Y.3d at 738, Seaberg, 74 N.Y.2d at 11-12. To that final point, this Court has described the practice of securing a written waiver in conjunction with a defendant’s verbal waiver as “even better” than relying on a verbal waiver alone. Nicholson, 6 N.Y.3d at 257. Of course, a written waiver, by itself, D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 10 September 1, 2016 is unenforceable when the plea court fails entirely to secure a verbal confirmation from the defendant of his understanding that, as a condition of the plea bargain, he is waiving his appellate rights. See People v. Cooper [companion to People v. Elmer], 19 N.Y.3d 501, 510 (2012); Bradshaw, 8 N.Y.3d at 265-661; People v. DeSimone [companion to People v. Callahan], 80 N.Y.2d 273, 283 (1992). But, this Court has held that a written waiver executed along with an “oral[ ] acknowledge[ment] on the record that [the defendant] understood that he was forgoing his right to appeal,” is enforceable even if an “ambiguity” or defect exists in the verbal colloquy. Ramos, 7 N.Y.3d at 738 (“Even if there were any ambiguity in the sentencing court’s colloquy, defendant executed a detailed written waiver”); see Bradshaw, 18 N.Y.3d at 264 (recognizing that even a “perfunctory” oral confirmation by a defendant “that he comprehended the nature of the appeal waiver” will be deemed valid as long as he also executed a “detailed written waiver”). Here, the record encompassed both the court’s oral colloquy with defendant that incorporated by reference the written waiver and confirmed defendant’s understanding of the significance of the waiver, and the written waiver itself that was signed contemporaneously with the plea by defendant and his attorney and was thereafter stamped with the court’s signature. Taken as a whole, the record unquestionably demonstrates that defendant’s waiver of his right to appeal was knowing, intelligent, and voluntary. With regard to the written waiver, defendant expressly confirmed that he understood he was “giving up the right to raise on appeal a number of claims that [he] could otherwise raise even after a guilty plea,” including his “right to ask the Appellate Division to review the terms of the plea and reduce [his] sentence.” He also affirmed in the written waiver his “understand[ing] that the right to appeal is separate and distinct from other rights automatically forfeited upon a plea of guilty.” And, he stated that he had “a full opportunity to discuss these matters with [his] attorney” and “execute[d] and sign[ed] this waiver knowingly, intelligently and voluntarily” (A087, A088). Thus, defendant’s written waiver provided ample record evidence that defendant was informed of the appellate rights he was waiving and that those rights were distinct from the ones automatically forfeited by pleading guilty. See Ramos, 7 N.Y.3d at 738 (enforcing written waiver that “stated that [the] defendant had the right to appeal, explained the appellate process,” and “confirmed” that defense counsel had advised the defendant about the waiver). Critically, the Appellate Division was required to enforce that written waiver so long as defendant “orally acknowledged on the record that he understood that he was forgoing his right to appeal.” Bradshaw, 18 N.Y.3d at 264; see Ramos, 7 N.Y.3d at 738. Here, that standard was easily met. During the portion of the plea proceeding dedicated D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 11 September 1, 2016 exclusively to defendant’s appeal waiver, Justice Carro made a point of noting that defendant had received and “executed” a “document entitled waiver of appeal.” The judge explained to defendant that by “waiving [his] right to appeal,” his “convictions” would ostensibly “be final” so that “a court will not review what we have done here.” Justice Carro asked defendant if he understood that, and defendant responded, “Yes” (A085). Justice Carro then asked defendant if he had “gone over” his appeal waiver “with [his] attorney, and defendant again responded, “Yes” (A085). After that, Justice Carro asked defendant if he had “any questions about” the waiver, and defendant replied, “No” (A085). Thus, not only did Justice Carro secure defendant’s “oral[ ] acknowledge[ment]” that he understood his appeal waiver, Bradshaw, 18 N.Y.3d at 264, the court also explained to defendant the ramifications of the waiver and asked several pointed questions to confirm that defendant was waiving his appellate rights knowingly and voluntarily after consulting with his attorney, signing a written waiver, and having the opportunity to ask the court any questions he might have about the waiver. The colloquy here was analogous to the one in Nicholson—which this Court determined to be “sufficient” to establish that the “defendant knowingly and intelligently waived his right to appeal.” Nicholson, 6 N.Y.3d at 257. In its entirety, the colloquy in Nicholson went as follows: the court stated, “‘You also understand you’re giving up your right to appeal, that is, to take to a higher court than this one any of the legal issues connected with this case? You understand that?’ [The] [d]efendant answered ‘Yes.’” Id. at 254. That directly tracked the portion of the colloquy here dedicated to explaining the nature of right being waived: “Sir, you understand that also as a part of this you are waiving your right to appeal,” meaning that “this conviction, or these convictions will be final, that a court will not review what we have done here, other than some residual rights that remain?” Defendant answered, “Yes” (A094). See Bryant, 137 A.D.3d at 403 (Tom, J., dissenting) (noting parallel between the colloquy here and the one in Nicholson). Indeed, it bears note that in Nicholson, unlike here, the record did not contain a written appeal waiver and the oral colloquy constituted the entire record of what was communicated to the defendant concerning the waiver. Nicholson, 6 N.Y.3d at 257. Although this Court observed that it would have been “even better” for the plea court in Nicholson to have also secured a written waiver of appeal, the orally colloquy alone was deemed “sufficient.” Id. at 257. Of course, because the colloquy here paralleled the one in Nicholson and was accompanied by defendant’s detailed, signed written waiver, the record in this case provides “even better” assurance that the waiver was valid. And, the colloquy here was also superior because, unlike in Nicholson, Justice D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 12 September 1, 2016 Carro obtained defendant’s affirmation that he consulted with his counsel about the waiver and had no questions for the court. This Court’s recent decision in Sanders is similarly instructive. The record in Sanders, like Nicholson, was devoid of a written waiver. Sanders, 25 N.Y.3d at 343 (Rivera, J., dissenting). The colloquy consisted of the defendant answering “yes” in response to the prosecutor asking him whether, after consulting with his attorney, he “voluntarily” waived his right to appeal his conviction and sentence “[i]n consideration of [ ]his negotiated plea.” Sanders, 25 N.Y.3d at 339-41. This Court observed that the colloquy in Sanders “went even further” that in Nicholson by “confirm[ing]” that the defendant “had discussed the waiver of the right to appeal with his attorney.” Id. Although this Court stated that it would have been better for the court in Sanders to have also defined the nature of the right to appeal more fully, “as the court did in Nicholson,” this Court upheld the validity of the waiver. Id. at 341.6 Here, like in Sanders, Justice Carro properly received defendant’s assurance that he had consulted with his counsel about the waiver, and, far better, the record here also included a written waiver and the court’s verbal explanation to defendant that by waiving his right to appeal no other court would review his conviction. The colloquy here, like in Sanders and Nicholson, also properly avoided commingling the appeal waiver with other rights automatically forfeited by the plea. Notably, the courts’ oral colloquies in Sanders and Nicholson did not detail that the right to appeal can ordinarily survive a plea bargain or that it is separate and distinct from other rights that defendants automatically waive by pleading guilty. Still, in both cases, that distinction was deemed to be “adequately” communicated, because the right to appeal and “the panoply of rights normally forfeited upon a guilty plea” were explained separately and thus not “lump[ed]” together. Sanders, 25 N.Y.3d at 341; Nicholson, 6 N.Y.3d at 257. So, too, here Justice Carro properly avoided “lumping” those different rights together. The plea colloquy commenced with Justice Carro twice explaining the trial rights that defendant automatically forfeited as a result of his plea bargain (A081- 083). After ensuring that defendant understood those rights, the judge next had defendant allocute to the facts of his crimes (A083-084). Only after that allocution did the court turn to the waiver of appeal (A085). 6 This Court also noted in Sanders that the defendant was unlikely to be confused about his appellate rights because of his “extensive experience with the criminal justice system and multiple prior guilty pleas that resulted in terms of imprisonment.” Id. at 342. In Nicholson, however, the defendant’s criminal history, or lack thereof, played no apparent role in this Court’s determination that Nicholson’s appeal waiver was knowing, intelligent, and voluntary. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 13 September 1, 2016 Thus, given defendant’s highly detailed written waiver and the oral colloquy that paralleled the one in Nicholson, the record on its face plainly established that defendant’s waiver of his right to appeal was knowing, intelligent, and voluntary. See Lopez, 6 N.Y.3d at 256 (a “waiver of the right to appeal is effective” if the “defendant’s understanding” of it “is evident on the face of the record”); see also Bradshaw, 18 N.Y.3d at 266-67; Ramos, 7 N.Y.3d at 738; Seaberg, 74 N.Y.2d at 11. Indeed, because the verbal waiver in this case was accompanied by defendant’s detailed written waiver, it was “even better” than the strictly oral waivers in both Nicholson and Sanders. See Nicholson, 6 N.Y.3d at 257; see also Sanders, 25 N.Y.3d at 341; Ramos, 7 N.Y.3d at 738. Nonetheless, the majority in the Appellate Division ignored this Court’s holdings in Nicholson, Sanders, Ramos, and Bradshaw and determined that the written waiver and oral colloquy here were both insufficient to ensure that defendant’s waiver was knowing and intelligent. Bryant, 137 A.D.3d at 401-02. Pertaining to the oral colloquy, the majority concluded that the court “[in]adequately explained the nature of the [appeal] waiver, the rights the defendant would be waiving, or that the right to appeal was separate and distinct from the rights automatically forfeited upon a plea of guilty.” Id. 401-402. As for the written waiver, the majority ruled that it was “no substitute for an on-the-record explanation of the nature of the right to appeal,” because it was unclear whether defendant signed the waiver before or after the court’s colloquy pertaining to the waiver. Id. at 402. In light of this Court’s controlling precedent, the Appellate Division’s decision was manifestly erroneous. At the outset, the majority opinion rested on the false premise that Justice Carro was affirmatively required to provide defendant with a detailed explanation of the right to appeal and how it was distinct from trial rights automatically forfeited by a guilty plea. As discussed, however, no such duty exists: a trial court is not required to “engage in any particular litany” during the plea allocution in order to render a waiver of appeal enforceable. Sanders, 25 N.Y.3d at 341 (quoting Lopez, 6 N.Y.3d at 256). That was especially true here, because Justice Carro knew that defendant had executed a written waiver that explained the nature of his appellate rights and detailed how those rights were distinct from other rights automatically forfeited by a plea. Under these circumstances, the court was required only to secure some on-the-record confirmation that defendant understood that he was waiving his right to appeal. Bradshaw, 18 N.Y.3d at 264; Ramos, 7 N.Y.3d at 738. Justice Carro did that and more. To accompany defendant’s picture-perfect written waiver, the court’s oral colloquy emphasized that defendant’s appeal waiver meant that his case would be final and not reviewed by any other court, ensured that defendant had discussed the waiver with his attorney, and D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 14 September 1, 2016 provided defendant with the opportunity to ask the court any questions he had about the waiver. The Appellate Division majority also erroneously faulted Justice Carro for using the phrase “also as part of this you are waiving your right to appeal” when describing the waiver to defendant. Bryant, 137 A.D.3d at 401-02. The majority interpreted the court’s phrasing to imply that defendant was automatically forfeiting his appellate rights “as part of” pleading guilty, and thus “expressly undercut the principle that a defendant must understand his waiver of appeal to be distinct from the rights forfeited upon a guilty plea.” Id. at 401-02. But, contrary to that conclusion, Justice Carro’s use of the words “also as part of this you are waiving your right to appeal” was no different in substance from the court’s phrasing in Nicholson, “You also understand you’re giving up your right to appeal.” 6 N.Y.3d at 254. Unable to draw any distinction between the colloquy here and in Nicholson, the majority simply ignored Nicholson entirely. But see Bryant, 137 A.D.3d at 403 (Tom, J., dissenting) (concluding that the language here “tracks the same colloquy that provided for a valid waiver in People v. Nicholson”). And, even if the colloquy here were ambiguous, defendant’s waiver remained valid, because, as this Court has made clear, a written waiver of appeal executed in conjunction with an imperfect or “ambigu[ous]” colloquy still results in a valid waiver of appeal. Ramos, 7 N.Y.3d at 738. The majority’s analysis was in error for the additional reason that it disregarded the actual test that this Court set forth for determining whether a colloquy conflated the right to appeal with other rights automatically forfeited. That test, as noted, requires an examination of the colloquy as a whole to see if the court “lump[ed]” those rights together instead of explaining them separately. Sanders, 25 N.Y.3d at 341; Nicholson, 6 N.Y.3d at 257. The colloquy here easily passed that test, because, as detailed above, the court first described the trial rights defendant was forfeiting without mentioning the right to appeal; the judge next turned to defendant’s factual allocution of his crimes and, only after that, separately discussed the appeal waiver. Perhaps most egregious of all, however, was the majority’s complete disregard of defendant’s express statement in his written waiver that he “underst[oo]d that the right to appeal is separate and distinct from other rights automatically forfeited upon a plea of guilty, such as the right to remain silent, the right to confront one’s accusers and the right to a jury trial” (A087, A088). According to the majority, the entirety of defendant’s written waiver was unenforceable because the waiver form said that defendant signed it “after being advised by the Court,” and it was unclear from the record if defendant signed the form before or after the court conducted the plea D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 15 September 1, 2016 colloquy pertaining to that waiver. Bryant, 137 A.D.3d at 402. But, contrary to that assertion, Justice Carro, who presided over the plea proceeding, explained in his order denying defendant’s post-conviction motion that defendant’s written waiver was “executed” after the court advised defendant about the appeal waiver (A100). Consistent with Justice Carro’s account, defendant and his attorney signed two copies of the waiver, and the second copy included Justice Carro’s stamped signature, signaling that the stamped waiver document was executed in open court and in the judge’s presence (A087, A088). Thus, the record, viewed as a whole, debunks the majority’s attempt to give short shrift to the written waiver based on the notion that it might have been signed prior to the colloquy pertaining to the waiver.7 Finally, while not directly addressed by the Appellate Division below, it bears emphasis that a review of “all the relevant facts and circumstances surrounding the waiver,” Seaberg, 74 N.Y.2d at 11, “including the nature and terms of the agreement,” Bradshaw, 18 N.Y.3d at 264-65, further militated in favor of enforcing the waiver. The record amply demonstrates that defendant’s original bargained-for sentence of from four to twelve years was eminently fair, and defendant was well justified in choosing to accept it. In that regard, defendant’s plea deal permitted him to dispose of 33 felony charges, for which the People had strong proof of his guilt—including his own confessions. On the seven burglary charges alone, all class C violent felonies, defendant faced up to fifteen years in prison for each count, all of which could have been set to run consecutively. Instead, defendant received an indeterminate sentence that allowed him to be parole eligible within four years. He plainly benefited greatly from his bargain. Notably, too, Justice Carro observed in his order denying defendant’s post-judgment motion that defendant’s pro se communications with the court displayed defendant’s clear understanding of the difference between consecutive and concurrent sentencing (A086). Defendant thus grasped the terms of his bargained-for sentence. All of these 7 Notably, on this record, the precise timing of when defendant affixed his signature to the written waiver documents is simply irrelevant. After all, this Court has never held that the specific moment a waiver is signed is material to determining whether it was knowing or voluntary. That is particularly true where, as here, the court noted on the record that defendant had “executed” a written waiver, and defendant confirmed orally that he reviewed his appeal waiver with his attorney, understood the rights he was waiving, and had “[n]o” questions for the court about the content or meaning of the written waiver (A085). Simply put, nothing in law or logic supports the majority’s conclusion that the exact timing of when the waiver was signed at all affected its validity. Presumably that is why defendant never even attempted to make this argument in his brief before the Appellate Division. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 16 September 1, 2016 factors provided additional proof that he understood the rights he was waiving as a part of his plea deal. See Bradshaw, 18 N.Y.3d at 264-65; Seaberg, 74 N.Y.2d at 11.8 In sum, the record clearly demonstrates that defendant knowingly, intelligently, and voluntarily waived his right to appeal the length of his bargained-for sentence. The Appellate Division majority erred as a matter of law by misapplying this Court’s precedent in discounting both the oral and written waiver. Accordingly, the Appellate Division’s order modifying defendant’s sentence should be reversed and the original judgment against defendant reinstated. CONCLUSION For the reasons discussed, as well as those set forth in Justice Tom’s dissenting opinion in the Appellate Division, this Court should reverse the order of the Appellate Division and reinstate defendant’s original judgment of conviction. 8 Before the Appellate Division, defendant claimed that he was entitled to a sentencing reduction based on his history of depression and “learning disabilities” (A013-017). Importantly, however, defendant did not cite any of those factors to support his claim that his appeal waiver was invalid (see A018-023). Thus, as defendant did not contest below, the record provides no evidence that defendant, who was 23 years old and had four prior low-level convictions at the time of his arrest (see SA002-004), lacked the “the age, experience, and background” to understand the rights he was waiving. Bradshaw, 18 N.Y.3d at 264-65. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 17 September 1, 2016 Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: /S/ _ Joshua L. Haber Assistant District Attorney (212) 335-9236 Hilary Hassler Joshua L. Haber Assistant District Attorneys Of Counsel September 1, 2016 cc: David J. Klem, Esq. Center for Appellate Litigation 120 Wall Street – 28th Floor New York, New York 10005