Opinion
2017–03461 Ind.No. 6936/15
05-15-2019
The PEOPLE, etc., Respondent, v. Eduardo AYALA, Appellant.
Paul Skip Laisure, New York, N.Y. (Melissa S. Horlick of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross, Brooklyn, of counsel; Marielle Burnett on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Melissa S. Horlick of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross, Brooklyn, of counsel; Marielle Burnett on the memorandum), for respondent.
WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDERAppeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Guy James Mangano, Jr., J.), imposed March 10, 2017, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The defendant entered into a plea agreement pursuant to which he pleaded guilty to burglary in the third degree and robbery in the third degree. He was sentenced, in accordance with the plea agreement, to an indeterminate term of 3½ to 7 years' imprisonment on each conviction, with both sentences of imprisonment to run consecutively to each other.
On appeal, the defendant contends that the sentence imposed was excessive. The People argue that review of the defendant's contention is precluded because he waived his right to appeal.
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, 59 N.Y.S.3d 715 ; People v. Blackwood, 148 A.D.3d 716, 716, 48 N.Y.S.3d 709 ).
As this Court recently 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 ). A defendant should also " ‘receive an explanation of the nature of the right to appeal, which essentially advises that this right entails the opportunity to argue, before a higher court, any issues pertaining to the defendant's conviction and sentence and to have that higher court decide whether the conviction or sentence should be set aside based upon any of those issues ... [and] that appellate counsel will be appointed in the event that he or she were indigent’ " ( People v. Batista, 167 A.D.3d at 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. Swen, 164 A.D.3d 926, 82 N.Y.S.3d 100 ; People v. Alston, 163 A.D.3d 843, 843–844, 81 N.Y.S.3d 167 ). Finally, " ‘trial courts should then explain the consequences of waiving the right to appeal, i.e., that the conviction and sentence will not receive any further review, and shall be final’ " ( People v. Batista, 167 A.D.3d at 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. Swen, 164 A.D.3d 926, 82 N.Y.S.3d 100 ; People v. Alston, 163 A.D.3d at 843–844, 81 N.Y.S.3d 167 ).
Here, the record of the plea proceedings demonstrates that the defendant understood that the appeal waiver was separate and distinct from those rights automatically forfeited upon a plea of guilty and that the defendant was voluntarily relinquishing that right in consideration for the promised sentence (see People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 ; People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Byrd, 100 A.D.3d 1013, 1013, 954 N.Y.S.2d 464 ; see also People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297 ). Furthermore, the record of the plea proceeding demonstrates that the defendant received an explanation of the nature of the right to appeal and the consequences of waiving that right (see People v. Spitzer, 163 A.D.3d 591, 76 N.Y.S.3d 410 ; People v. Rocchino, 153 A.D.3d 1284, 59 N.Y.S.3d 715 ; People v. Stiles, 143 A.D.3d 747, 747, 38 N.Y.S.3d 436 ; People v. Romero–Flores, 128 A.D.3d 1102, 1102, 8 N.Y.S.3d 606 ; People v. McRae, 123 A.D.3d 848, 848–849, 996 N.Y.S.2d 531 ; see also People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297 ). Under the circumstances, including the defendant's "extensive experience with the criminal justice system" ( People v. Sanders, 25 N.Y.3d at 342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ), the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see generally People v. Bradshaw, 18 N.Y.3d at 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Hidalgo, 91 N.Y.2d 733, 735, 675 N.Y.S.2d 327, 698 N.E.2d 46 ). The defendant's valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v. Hardy, 120 A.D.3d 1358, 1358, 991 N.Y.S.2d 904 ; People v. Arteev, 120 A.D.3d 1255, 1255, 991 N.Y.S.2d 776 ; People v. Alexander, 104 A.D.3d 862, 862, 960 N.Y.S.2d 659 ).
MASTRO, J.P., MILLER, DUFFY and LASALLE, JJ., concur.