Opinion
2019–04124 Ind. No. 18–00225
01-05-2022
The PEOPLE, etc., respondent, v. Joemy R. RIVERA, appellant.
Kenyon C. Trachte, Newburgh, NY, for appellant. David M. Hoovler, District Attorney, Middletown, NY (Andrew R. Kass of counsel), for respondent.
Kenyon C. Trachte, Newburgh, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (Andrew R. Kass of counsel), for respondent.
LEONARD B. AUSTIN, J.P., COLLEEN D. DUFFY, BETSY BARROS, CHERYL E. CHAMBERS, WILLIAM G. FORD, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered December 21, 2018, convicting him of gang assault in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid, as the record does not demonstrate that the waiver was made knowingly, intelligently, and voluntarily (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). The County Court's oral colloquy mischaracterized the nature of the appeal waiver as an absolute bar to the taking of a direct appeal (see People v. Bisono, 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Brenner, 193 A.D.3d 875, 142 N.Y.S.3d 389 ). Further, the written waiver of the right to appeal and an on off-the-record conversation with the defendant's counsel are not sufficient to uphold the waiver, as they are not permissible substitutes for the court's proper apprisal of the nature and scope of the appeal waiver (see People v. Stinson, 189 A.D.3d 1271, 134 N.Y.S.3d 200 ; People v. Neilson, 167 A.D.3d 779, 780, 90 N.Y.S.3d 78 ). In addition, the written waiver of the right to appeal also mischaracterizes the nature of the waiver as an absolute bar to the taking of a direct appeal (see People v. Bisono, 36 N.Y.3d at 1015–1016, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Thomas, 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Brenner, 193 A.D.3d at 875, 142 N.Y.S.3d 389 ). Thus, the purported waiver does not preclude appellate review of the defendant's claim that his absolute right to be present at all material stages of the proceedings was violated (see People v. Fuller, 163 A.D.3d 715, 76 N.Y.S.3d 852 ).
The defendant waived his right to contest the purported violation of his right to be present at all material stages of his trial by pleading guilty. "As a general rule, a plea of guilty, intelligently and voluntarily entered, operates as a waiver of certain fundamental constitutional defects and bars the later assertion of constitutional challenges to pretrial proceedings" ( People v. Thomas, 74 A.D.2d 317, 319, 428 N.Y.S.2d 20, affd 53 N.Y.2d 338, 441 N.Y.S.2d 650, 424 N.E.2d 537 [citations omitted]; see Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 ; People v. Best, 89 A.D.2d 1018, 454 N.Y.S.2d 463 ; see also Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 ; McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 ; Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 ).
AUSTIN, J.P., DUFFY, BARROS, CHAMBERS and FORD, JJ., concur.