Opinion
2017–05875 Ind.No. 16–00547
12-12-2018
The PEOPLE, etc., Respondent, v. Leslie NEILSON, Appellant.
Michele Marte–Indzonka, Newburgh, NY, for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (William C. Ghee and Robert H. Middlemiss of counsel), for respondent.
Michele Marte–Indzonka, Newburgh, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (William C. Ghee and Robert H. Middlemiss of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JEFFREY A. COHEN, LINDA CHRISTOPHER, JJ.
DECISION & ORDERORDERED 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 ). 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 ).
The County Court did not provide the defendant with an explanation of the nature of the right to appeal or explain the consequences of waiving that right. Although the record on appeal reflects that the defendant signed the written appeal waiver form, a written waiver "is not a complete substitute for an on-the-record explanation of the nature of the right to appeal" ( People v. Bradshaw, 76 A.D.3d 566, 569, 906 N.Y.S.2d 93, affd 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; see People v. Cuevas–Alcantara, 136 A.D.3d 650, 23 N.Y.S.3d 902 ). Moreover, "it will not be sufficient for the trial court to defer to the defendant's off-the-record conversations with defense counsel by merely confirming with defense counsel that he or she has discussed the waiver of the right to appeal with the defendant" ( People v. Brown, 122 A.D.3d at 141, 992 N.Y.S.2d 297 ). Here, the court's limited colloquy amounted to nothing more than " ‘a simple confirmation that the defendant signed the waiver and a conclusory statement that the defendant understood the waiver or was executing it knowingly and voluntarily’ " ( People v. Burnett–Hicks, 133 A.D.3d 773, 774, 19 N.Y.S.3d 181, quoting People v. Brown, 122 A.D.3d at 140, 992 N.Y.S.2d 297 ; see People v. Guniss, 160 A.D.3d 895, 896, 75 N.Y.S.3d 224 ). Under these circumstances, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal.
The defendant's claim of ineffective assistance of counsel cannot be reviewed on direct appeal because it is based, in part, on matter outside the record, and, thus, constitutes a "mixed claim" of ineffective assistance ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Cassadean, 160 A.D.3d 655, 656–657, 72 N.Y.S.3d 575 ; People v. Hili, 158 A.D.3d 647, 648, 67 N.Y.S.3d 851 ). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (see People v. Ayala, 146 A.D.3d 966, 967, 45 N.Y.S.3d 219 ; People v. Barber, 133 A.D.3d 868, 872, 22 N.Y.S.3d 63 ). Since the defendant's claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Sanders, 148 A.D.3d 846, 846, 47 N.Y.S.3d 914 ; People v. Crosby, 133 A.D.3d 681, 682, 20 N.Y.S.3d 100 ; People v. Martial, 125 A.D.3d 688, 689, 2 N.Y.S.3d 591 ; People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ).
Contrary to the defendant's contention, the County Court providently exercised its discretion in imposing a sentence greater than what had been promised in the original plea agreement (see People v. Smith, 160 A.D.3d 664, 665, 73 N.Y.S.3d 600 ; People v. Harris, 142 A.D.3d 557, 557–558, 36 N.Y.S.3d 211 ; People v. Grant, 122 A.D.3d 767, 767, 996 N.Y.S.2d 147 ; People v. Scott, 101 A.D.3d 1773, 1774, 957 N.Y.S.2d 554 ). The court had specifically warned the defendant of the consequences of failing to appear for a presentence interview with the probation department, including the potentially longer sentence he faced. Nevertheless, the defendant failed to appear for his interview on the originally scheduled date due to a snowstorm, and did not appear on the rescheduled date because of purported transportation problems. Under the circumstances, the court was not bound by its original promise, and we agree with the court's imposition of an enhanced sentence (see People v. Smith, 160 A.D.3d at 665, 73 N.Y.S.3d 600 ; People v. Nesbitt, 125 A.D.3d 1016, 1017, 1 N.Y.S.3d 580 ).
"Even though the court had a right to enhance the sentence, [this Court has] broad, plenary power to modify an enhanced sentence that is harsh or excessive under the circumstances" ( People v. Diaz, 146 A.D.3d 803, 805, 46 N.Y.S.3d 627 ; see CPL 470.15[6][b] ; People v. Delgado, 80 N.Y.2d 780, 587 N.Y.S.2d 271, 599 N.E.2d 675 ). Here, however, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
SCHEINKMAN, P.J., DILLON, COHEN and CHRISTOPHER, JJ., concur.