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Misinformation from Defense Counsel, Prosecutor and Judge Re: Defendant’s Eligibility for Shock Incarceration Warranted Vacation of Guilty Plea In Spite of Appeal Waiver/Overnight Guest Has Standing to Contest Search of Residence

The Third Department, over a dissent, determined that misinformation from the judge, prosecutor and defense counsel about defendant’s eligibility for the shock incarceration program justified the vacation his guilty plea, despite an appeal waiver. In addition, the court determined defendant was entitled to a hearing on whether he had standing to contest the search of another’s mobile home.  The owner of the mobile home (Orrego) had supplied an affidavit stating defendant was an overnight guest, a status the provided standing to contest the search:

Given the mistake by all involved in the plea proceeding, and counsel’s failure to provide meaningful representation on this issue, we agree with defendant’s contention that his motion to withdraw his guilty plea should have been granted. * * *

… [A] trial court is not obligated to conduct a suppression hearing “unless the accused alleges facts that, if true, demonstrate standing to challenge the search or seizure” … . Pertinent here, “an overnight guest has an expectation of privacy in the host’s home” and, thus, standing to contest a search of that home … . In our view, the facts set forth in the Orrego affidavit necessitated, at a minimum, that a hearing be held to determine whether defendant had standing to contest the search… . People v Wiggins, 2015 NY Slip Op 02517, 3rd Dept 3-26-15

 

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Appeal Waiver Did Not Encompass Youthful Offender Status/Defendant Should Have Been Adjudicated a Youthful Offender

The Fourth Department determined the defendant did not waive his right to appeal the court’s failure to adjudicate him a youthful offender and further determined defendant should be so adjudicated:

… [T]he waiver [of appeal] does not encompass defendant’s contention regarding the denial of his request for youthful offender status, inasmuch as “[n]o mention of youthful offender status was made before defendant waived his right to appeal during the plea colloquy” … .

We agree with defendant that he should have been afforded youthful offender status. Defendant was 16 years old at the time of the offense and committed the offense when he and his two friends were walking to a park, saw a vehicle with the keys in the ignition, and wondered what it would be like to steal the vehicle. Defendant expressed remorse for his actions, which we conclude were the actions of an impulsive youth rather than a hardened criminal (see People v Drayton, 39 NY2d 580, 584, rearg denied 39 NY2d 1058). Thus, under the circumstances, we modify the judgment as a matter of discretion in the interest of justice by adjudicating defendant a youthful offender … . People v Angel T.C., 2015 NY Slip Op 02296, 4th Dept 3-20-15

 

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Waiver of Right to Appeal Invalid Despite the Signing of a Written Waiver

The Second Department determined defendant’s waiver of his right to appeal was not valid because the right was not adequately explained and because there was no indication that the written waiver signed by the defendant was translated for him:

…[T]he record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The Supreme Court’s statements at the plea allocution improperly suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal … . Moreover, there is no indication in the record that the defendant understood the distinction between the right to appeal and other trial rights that are forfeited incident to a plea of guilty … . 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, the court’s terse colloquy at the plea allocution, which included the language suggesting that the waiver of the right to appeal was mandatory, failed to sufficiently advise the defendant of the nature of the right to appeal … . People v Guarchaj, 2014 NY Slip Op 08044, 2nd Dept 11-19-14

 

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Waiver of Appeal Invalid/The Way Defendant Was Holding a Cigarette Justified the Vehicle Stop/No Probable Cause for Warrantless Search of Trunk of Defendant’s Car

The First Department determined (1) the waiver of appeal, which included a signed written waiver, was not valid; (2) the stop of defendant’s vehicle, the removal of the occupants, and the search of the interior of the car was justified by the police officer’s belief defendant was smoking a marijuana cigarette held between his thumb and index finger and the observation of an empty glassine envelope; and (3) the warrantless search of the trunk where ecstasy was found was not justified by probable cause:

A waiver of the right to appeal is not effective unless it is apparent from the record that it was made knowingly, intelligently and voluntarily … . For a waiver to be effective, the record must demonstrate that the defendant has a full appreciation of the consequences of the waiver …, including an understanding “that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty … .

Here, the court never adequately explained the nature of the waiver, the rights the defendant would be waiving or that the right to appeal was separate and distinct from the rights automatically forfeited upon a plea of guilty. Accordingly, the waiver was invalid and unenforceable … . The written waiver signed by defendant was no substitute for an on-the-record explanation of the nature of the right to appeal … . In addition, the court’s statement that defendant was “going to be required” to waive his right to appeal could have misled him into believing that he had no choice but to do so … . * * *

…Officer Rivera, an experienced policeman who had participated in approximately 30 arrests involving marijuana, testified to the court’s satisfaction that, in his opinion and experience, the manner in which defendant was handling the cigarette indicated that it was a marijuana cigarette. “[M]uch weight must be accorded the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses” … . That Rivera was not “certain” that defendant was smoking marijuana is of no moment, since “[t]he standard for [a forcible stop is] merely reasonable suspicion, not absolute certainty or even probable cause” … .

Defendant effectively concedes that the police were entitled to search in the area of the car where Officer Rivera claims to have smelled marijuana, but not anywhere else, and certainly not in the trunk. This, he argues, is because any grounds the police may have had to believe that the trunk contained drugs were belied by the lack of evidence that they existed anywhere else in the car.

Indeed, there was scant evidence of drugs in the car. After approaching the car, Rivera never saw the marijuana cigarette that he claimed he saw when he drove past defendant’s car, and he was equivocal about whether he smelled burning or unburnt marijuana. Further, the glassine envelope that Officer Ali uncovered was empty, and it was not until later that day, after defendant and his companions were arrested, that Rivera concluded that it contained marijuana. Rivera also conceded that defendant did not appear to be under the influence.  * * * Accordingly, we find that the police lacked probable cause to search the trunk, and that the Ecstasy found there should have been suppressed.  People v Ramos, 2014 NY Slip Op 07931, 1st Dept 11-18-14

 

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Waiver of Appeal Invalid—Failure to Afford Defendant His Right to Counsel Prior To and During Grand Jury Proceedings Required Dismissal of the Indictment—“Guilty-Plea” Forfeiture Rule Did Not Apply

The Third Department reversed defendant’s conviction by guilty plea, finding that the defendant’s waiver of appeal was invalid and the defendant had been deprived of his right to counsel with respect to whether to testify before the grand jury:

A trial court must ensure that a defendant’s waiver of the right to appeal is knowing, intelligent and voluntary … . After the People informed County Court that defendant agreed to waive his right to appeal, the court asked defendant whether that contention was accurate, to which defendant replied affirmatively. Thereafter, the court questioned defendant about his understanding of the terms of the plea bargain, but failed to confirm that he fully understood that his waiver of appeal was not automatic and that it was, in fact, “separate and distinct from those rights automatically forfeited upon a plea of guilty” … . Defendant signed a written waiver of appeal outside of court and County Court made no inquiry about “the circumstances surrounding the document’s execution” or confirm that defendant had been fully advised by counsel of the document’s significance … . As such, the appeal waiver was invalid … .

On the merits of defendant’s appeal, a criminal defendant’s right to receive the assistance of counsel attaches at arraignment “and entails the presence of counsel at each subsequent critical stage of the proceedings” … . Further, whether an accused individual facing felony charges should elect to appear before and present evidence to the grand jury or, as equally relevant here, object to the timeliness or reasonableness of the notice of grand jury proceedings, raises questions necessitating consultation with legal counsel … . The People correctly observe that, by pleading guilty, defendant forfeited his claim that he was denied the statutory right to testify before the grand jury … or, as defendant now argues on appeal, that he was denied the effective assistance of counsel where, as here, such assertion does not relate to the voluntariness of the plea or the integrity of the plea bargaining process … . Here, however, it is uncontroverted that defendant was denied the right to counsel prior to and during the grand jury proceedings, a critical stage of the instant criminal prosecution and, therefore, the forfeiture rule should not be applied … . Further, we observe that, while defendant’s motion to dismiss the indictment was based solely on the denial of his right pursuant to CPL 190.50 (5) (a) to testify before the grand jury, the “claimed deprivation of the [s]tate constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved” before County Court … . Inasmuch as defendant was not afforded an opportunity to consult with counsel “and make an informed decision as to whether to appear before the [g]rand [j]ury”…, the resulting deprivation of defendant’s constitutional right to counsel requires the dismissal of the indictment … . People v Chappelle, 2014 NY Slip Op 07014, 3rd Dept 10-16-14

 

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Clause in Appeal-Waiver Agreement Which Purported to Vacate Plea and Sentence Upon the Filing of a Notice of Appeal Unenforceable

The First Department determined defendant’s waiver of his right to appeal was not adequately explained by the sentencing court and further determined a clause in the waiver agreement is unenforceable.  The Clause purported to vacate the plea and sentence if a notice of appeal is filed:

,,,[W]e agree with defendant that the clause in the waiver agreement that purportedly treats the filing of a notice of appeal by defendant as a motion to vacate the judgment to be unenforceable. Specifically, the waiver form included the following clause:

“If the defendant or the defendant’s attorney files a notice of appeal that is not limited by a statement to the effect that the appeal is solely with respect to a constitutional speedy trial claim or legality of the sentence, they agree that the District Attorney and or Court may deemed such filing to be a motion by the defendant to vacate the conviction and sentence, and will result, upon the application and consent of the District Attorney, in the plea and sentence being vacated and this indictment being restored to its pre-pleading status.”

This clause is unenforceable because there is no statutory authority to vacate a judgment under these circumstances (CPL 440.10,,,).

Further, this language discourages defendants from filing notices of appeal even when they have claims that cannot be waived, such as one concerning the lawfulness of the waiver or the plea agreement itself. “[A]n agreement to waive appeal does not foreclose appellate review in all situations” … . If the agreement to waive were itself sufficient to foreclose appellate review, “the court would then be deprived of the very jurisdictional predicate it needs as a vehicle for reviewing the issues that survive the waiver” … . The language in the written waiver, in essence, purports to prevent appellate claims that have been found by the courts to be “unwaivable” precisely because of their constitutional import … . People v Santiago 2014 NY Slip Op 05493, 1st Dept 7-24-14

 

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Waiver of Appeal Invalid

The Second Department determined defendant’s waiver of his right to appeal, which included a written waiver, was invalid:

A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” … . ” Though a trial court need not engage in any particular litany’ or catechism in satisfying itself that a defendant had entered a knowing, intelligent and voluntary appeal waiver, a trial court must make certain that a defendant’s understanding’ of the waiver . . . is evident on the face of the record” … . Further, it must be made clear to the defendant that an appeal waiver ” is separate and distinct from those rights automatically forfeited upon a plea of guilty'” … . “A detailed written waiver can supplement a court’s on-the-record explanation of what a waiver of the right to appeal entails, but a written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal as a condition of the plea agreement'” … .

Here, although the defendant executed a written waiver of his right to appeal, the defendant’s understanding of the appeal waiver is not evident on the face of the record due to the deficiency of the oral colloquy conducted by the Supreme Court in light of the absence of any mention of the waiver during the discussion of the terms of the plea. After the plea agreement had been reached, the court told the defendant that “[b]efore I accept your plea, you need to sign a waiver of your right to appeal.” First, the court’s “terse colloquy [which included this mandatory-sounding language] at the plea allocution failed to sufficiently advise the defendant of the nature of his right to appeal” … . Second, the court suggested that the right to appeal is automatically forfeited upon pleading guilty when it advised the defendant that the written appeal waiver “tells me you understand the rights you have waived by pleading guilty” … . Accordingly, under these circumstances, including the defendant’s relative inexperience with the criminal justice system …, the defendant’s appeal waiver was invalid … .  People v Pressley, 2014 NY Slip Op 02461, 2nd Dept 4-9-14

 

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Defendant Understood the Reference to the “Appellate Division” Was a Reference to a Higher Court—Waiver of Appeal Was Therefore Valid

The Second Department, over a dissent, determined that the defendant’s waiver of appeal was knowingly, voluntarily and intelligently made.  The defendant was asked by the prosecutor if he understood he was waiving the right to appeal his conviction and sentence to “the Appellate Division, Second Department.”  Because the defendant was 27 years old, had prior contact with the criminal justice system, had filed a notice of appeal pro se, and had requested appellate counsel, the court concluded the defendant understood the reference to the “appellate division” was a reference to a higher court. People v Sanders, 2013 NY Slip Op 08276, 2nd Dept 12-11-13

 

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Defendant’s Waiver of His Right to Appeal, Which Included His Signing a Printed Form Used by Rockland County, Was Invalid

The Second Department determined defendant’s waiver of his right to appeal was invalid:

The defendant’s purported waiver of his right to appeal was invalid … . Although the defendant signed a Rockland County pre-printed form waiver, as we have previously stated, this form “contained erroneous statements with regard to the waiver of the right to appeal” and should not have been utilized … . The Supreme Court’s terse colloquy at the plea allocution failed to sufficiently advise the defendant of the nature of his right to appeal. Further, the defendant never orally confirmed that he grasped the concept of the appeal waiver and the nature of the right he was forgoing … . Under these circumstances, the record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal.  People v Salgado, 2013 NY Slip Op 07755, 2nd Dept 11-20-13

 

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Valid Waiver of Appeal Does Not Preclude Review of Whether Ineffective Assistance Affected Voluntariness of Plea

The Second Department noted that a valid waiver of appeal precludes review of the factual sufficiency of a plea allocution, but does not preclude review of a claim of ineffective assistance where the voluntariness of the plea may have been affected:

The defendant’s valid waiver of his right to appeal precludes review of his challenge to the factual sufficiency of his plea allocution … . While the valid waiver of his right to appeal would typically preclude review of the defendant’s claim that he was deprived of his right to effective assistance of counsel, here, the defendant claims that the alleged ineffective assistance may have affected the voluntariness of his plea, and, as such, his claim is reviewable … . Nevertheless, contrary to the defendant’s contention, his attorney provided him with meaningful representation … . Moreover, the Supreme Court providently exercised its discretion in denying the defendant’s motion to withdraw his guilty plea … . People v Milton, 2013 NY Slip Op 07507, 2nd Dept 11-13-13

 

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