Peoplev.Johnson

Supreme Court, Appellate Division, Second Department, New York.Jun 29, 2016
35 N.Y.S.3d 375 (N.Y. App. Div. 2016)

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06-29-2016

The PEOPLE, etc., respondent, v. Laquin JOHNSON, appellant.

  Gary E. Eisenberg, New City, N.Y., for appellant. James A. McCarty, Acting District Attorney, White Plains, N.Y. (Jennifer Spencer and Laurie Sapakoff of counsel), for respondent.


Gary E. Eisenberg, New City, N.Y., for appellant.

James A. McCarty, Acting District Attorney, White Plains, N.Y. (Jennifer Spencer and Laurie Sapakoff of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Molea, J.), rendered December 11, 2014, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

“A waiver of the right to appeal may be elicited as a condition of a plea bargain” (People v. Johnson, 14 N.Y.3d 483, 486, 903 N.Y.S.2d 299, 929 N.E.2d 361 ; see People v. Seaberg, 74 N.Y.2d 1, 5, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ). However, such a waiver “will not be enforced unless it was knowingly, intelligently and voluntarily made” (People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). For a waiver of the right to appeal to be valid, the defendant must understand that a waiver of the right to appeal is distinguishable from a forfeiture of certain rights which occurs as a consequence of 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 (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see also People v. Gordon, 127 A.D.3d 1230, 1231, 5 N.Y.S.3d 900 ; People v. Cantarero, 123 A.D.3d 841, 841, 996 N.Y.S.2d 724 ; People v. Jacob, 94 A.D.3d 1142, 1143–1144, 942 N.Y.S.2d 627 ; People v. Mayo, 77 A.D.3d 683, 684, 908 N.Y.S.2d 353 ).

Here, at the time that the defendant entered his plea of guilty, his attorney told the Supreme Court that he had informed the defendant, among other things, that “he has to waive his right to appeal.” Defense counsel's indication to the defendant that waiving the right to appeal is mandatory rather than a right that could be voluntarily relinquished was not corrected by the court or the prosecutor (see e.g. People v. Pelaez, 100 A.D.3d 803, 803, 954 N.Y.S.2d 554 ). The later allocution of the defendant with respect to the waiver of the right to appeal also failed to correct defense counsel's earlier misstatement (see People v. Moyett, 7 N.Y.3d 892, 892–893, 826 N.Y.S.2d 597, 860 N.E.2d 59 ; People v. Pelaez, 100 A.D.3d at 803, 954 N.Y.S.2d 554 ; see also People v. Salgado, 111 A.D.3d 859, 859, 975 N.Y.S.2d 172 ). Accordingly, under these circumstances, the defendant's appeal waiver was invalid (see People v. Moyett, 7 N.Y.3d at 892–893, 826 N.Y.S.2d 597, 860 N.E.2d 59 ; People v. Pelaez, 100 A.D.3d at 803, 954 N.Y.S.2d 554 ).

Nonetheless, there is nothing in the record to suggest that the defendant's plea of guilty was not knowing, voluntary, and intelligent (see People v. Bethune, 91 A.D.3d 966, 967, 937 N.Y.S.2d 596 ; People v. Smith, 306 A.D.2d 210, 211, 760 N.Y.S.2d 847 ; People v. Montanez, 287 A.D.2d 407, 408, 731 N.Y.S.2d 721 ; People v. Sanchez, 284 A.D.2d 137, 725 N.Y.S.2d 548 ; People v. Anthony, 188 A.D.2d 477, 477, 591 N.Y.S.2d 181 ; People v. Empey, 141 A.D.2d 987, 988, 531 N.Y.S.2d 37 ). The defendant's contention that the plea was rendered involuntary because the plea allocution was primarily conducted by the prosecutor is without merit. Here, the Supreme Court conducted the initial voir dire and, to the extent that the prosecution directed questions to the defendant as part of the allocution, the court supervised such voir dire and interjected with clarifications and questions to the defendant (see People v. Fowler, 111 A.D.3d 958, 958, 975 N.Y.S.2d 691 ; People v. Bethune, 91 A.D.3d at 966–967, 937 N.Y.S.2d 596 ; cf. People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ).

The defendant's remaining contention is without merit.