Opinion
2012-11-14
The PEOPLE, etc., respondent, v. Jaime PELAEZ, appellant.
Lynn W.L. Fahey, New York, N.Y., for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y., for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.
RANDALL T. ENG, P.J., PETER B. SKELOS, ANITA R. FLORIO, and SHERI S. ROMAN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered December 16, 2009, convicting him of assault in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal ( see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645;People v. Burton, 93 A.D.3d 949, 939 N.Y.S.2d 717;People v. Grant, 83 A.D.3d 862, 921 N.Y.S.2d 285;People v. Monsuri, 83 A.D.3d 870, 920 N.Y.S.2d 677). The SupremeCourt's statements at the plea allocution suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish, and the Supreme Court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal ( see People v. Bradshaw, 76 A.D.3d 566, 569–570, 906 N.Y.S.2d 93,affd.18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645). Moreover, there is no indication in the record that the defendant understood the distinction between the right to appeal and other trial rights which are forfeited incident to a plea of guilty ( see People v. Moyett, 7 N.Y.3d 892, 892–893, 826 N.Y.S.2d 597, 860 N.E.2d 59;People v. Jacob, 94 A.D.3d 1142, 1143–1144, 942 N.Y.S.2d 627;People v. Remington, 90 A.D.3d 678, 679, 933 N.Y.S.2d 891;People v. Cieslewicz, 45 A.D.3d 1344, 1345, 845 N.Y.S.2d 590;cf. People v. Williams, 49 A.D.3d 1281, 1282, 856 N.Y.S.2d 334). Although the defendant did sign a written waiver of his right to appeal, nothing in the record demonstrates that the document was translated for the defendant, who required the use of a Spanish language interpreter, before it was presented to him for signature. In any event, a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” ( People v. Bradshaw, 76 A.D.3d at 569, 906 N.Y.S.2d 93). Accordingly, the defendant's waiver of the right to appeal is invalid, and does not bar review of the defendant's claims. We further note that the Supreme Court's explanation of the waiver of the defendant's right to appeal misstated the law by stating that it applied to issues that are not encompassed by an appeal waiver. The Supreme Court thereby effectively indicated, incorrectly, that the appeal waiver would preclude the defendant from seeking to vacate his plea on the grounds that it had been unknowing or involuntary, when, in fact “a defendant always retains the right to challenge ... the voluntariness of the plea” ( People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022;see People v. McLean, 77 A.D.3d 684, 908 N.Y.S.2d 352;People v. Rodriguez–Ovalles, 74 A.D.3d 1368, 903 N.Y.S.2d 258). Additionally, certain other claims survive a valid waiver of the right to appeal ( see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145). While the Supreme Court's overly broad explanation of the issues encompassed by the waiver of the right to appeal does not, standing alone, render it involuntary, that explanation is inaccurate, and should not be utilized in future cases.
The Supreme Court did not improvidently exercise its discretion in denying the defendant's motion to withdraw his plea of guilty. A motion to withdraw a plea of guilty is addressed to the sound discretion of the Supreme Court, and its determination generally will not be disturbed absent an improvident exercise of discretion ( see People v. Seeber, 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797;People v. Caruso, 88 A.D.3d 809, 930 N.Y.S.2d 668;People v. Amanze, 87 A.D.3d 1159, 929 N.Y.S.2d 876;People v. Perez, 83 A.D.3d 738, 739, 919 N.Y.S.2d 887). Here, the defendant's plea of guilty was knowingly, intelligently, and voluntarily entered ( see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;People v. Harris, 61 N.Y.2d 9, 16, 471 N.Y.S.2d 61, 459 N.E.2d 170;People v. Tobar, 92 A.D.3d 906, 938 N.Y.S.2d 819;People v. Jones, 92 A.D.3d 696, 937 N.Y.S.2d 862), and his assertion that he was rushed into making his decision to enter the plea is unsupported by the record.
The defendant's additional contentions that his plea was involuntary because his attorney coerced him and lied about his potential sentencing exposure, and because the Supreme Court failed to sua sponte order a mental health evaluation pursuant to CPL 730.30, are unpreserved for appellate review because the defendant did not move to withdraw his plea on those grounds ( see People v. Hammonds, 91 A.D.3d 791, 792, 936 N.Y.S.2d 905;People v. Bryant, 87 A.D.3d 1270, 1271, 930 N.Y.S.2d 324;People v. Strong, 80 A.D.3d 717, 914 N.Y.S.2d 679). In any event, these contentions are without merit. The defendant's claim that his attorney coerced him to plead guilty is not supported by the record ( see People v. Dazzo, 92 A.D.3d 796, 938 N.Y.S.2d 446;People v. Caruso, 88 A.D.3d at 810, 930 N.Y.S.2d 668;People v. Jackson, 87 A.D.3d 552, 553, 928 N.Y.S.2d 58). Further, a defendant is presumed to be competent, and there is no basis in the record to conclude that, at the time the defendant entered his plea, he lacked the capacity to understand the proceedings against him or was unable to assist in his defense ( see People v. Johnson, 87 A.D.3d 1074, 929 N.Y.S.2d 756;People v. Batista, 82 A.D.3d 1113, 1114, 919 N.Y.S.2d 350;People v. Shaffer, 81 A.D.3d 989, 917 N.Y.S.2d 267).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contentions are without merit.