People v. Moyett

OPINION OF THE COURT

Sullivan, J.

The only substantive claim on appeal is the excessiveness of sentence, an issue that can be reached only on a finding that defendant’s waiver of his right of appeal is invalid. Contrary to our concurring colleague’s view, we find that the record is sufficient to show that defendant knowingly, intelligently and voluntarily waived that right.

It is well-settled, as the concurrence recognizes, that the right to appeal may be waived as a condition of a plea bargain (People v Seaberg, 74 NY2d 1, 9 [1989]; see People v Callahan, 80 NY2d 273, 279-280 [1992]). Such a waiver must be knowingly, intelligently and voluntarily made (see Callahan, 80 NY2d at 283). The validity of such a waiver is determined by an examination of the record to assure that the prerequisites of waiver have been met (id.). The plea-taking court “must at least satisfy itself on the record that the waiver complies with the procedural and integrity-of-process safeguards” set forth by the Court of Appeals (People v Calvi, 89 NY2d 868, 871 [1996]). In that regard, there is no requirement that any particular litany of questions be used to satisfy the standard for eliciting such a waiver (Callahan, 80 NY2d at 283).

Furthermore, a general waiver of the right of appeal encompasses the right to appeal a sentence as harsh or excessive (People v Hidalgo, 91 NY2d 733 [1998]). A valid waiver of appeal also forecloses this Court’s interest-of-justice review (see e.g. People v Rosario, 269 AD2d 187 [2000], lv denied 94 NY2d 952 [2000]; People v Dong Chong, 247 AD2d 211 [1998], lv denied 91 NY2d 971 [1998]).

Here, the plea-taking court recited in great detail the terms of the plea and the promised sentence. Early in the plea allocution, the court advised defendant that he could confer with his lawyer as to any question before answering. Defendant acknowledged that he understood. The court asked defendant separately if he had spoken with his lawyer about the case and about pleading guilty, and whether he was satisfied with his lawyer’s services. To each inquiry, defendant responded “yes.”

Before accepting the guilty plea, the court again ascertained from defendant that he had spoken with the lawyer about pleading guilty and that he understood that by pleading guilty he was giving up his rights to remain silent and not incriminate himself. Then, after the prosecutor’s detailed recitation of the facts underlying the charges, defendant answered “yes” to the court’s question as to the truth of those facts. Next, the court posed separate questions to defendant as to whether he understood that when he pleads guilty, he is giving up his right to a hearing to suppress any physical evidence, any statement by him or identification testimony and his right to a trial by jury. As to each, defendant answered “yes.” The court also asked defendant whether he understood that he was giving up his right to cross-examine the prosecutor’s witnesses and his right to call witnesses on his behalf and to testify himself. He stated “yes” to those questions. The court again advised him of his rights to remain silent and not incriminate himself. The court further advised him of his right to a trial by jury, whose verdict had to be unanimous, and that at such trial his guilt had to be proven beyond a reasonable doubt. Defendant stated that he understood those rights and that he was relinquishing them by pleading guilty. He stated further that he understood that a plea of guilty had the same effect as a guilty verdict. Finally, after this lengthy and comprehensive allocution, the court asked defendant, in a separate question, whether he understood that by pleading guilty he was giving up his right to appeal the conviction. Defendant answered “yes.”

The court then reiterated the promised sentence and advised defendant that if it were unable to fulfill the sentence promise, it would give defendant his “plea back.” The court also advised defendant that his present conviction could be used to impose additional punishment if he were convicted of a new crime in the future and, in concluding, elicited from him that he was, in his own words, pleading guilty of his “[o]wn free will.” It should also be noted that defendant, over 23 years of age, had a prior felony conviction and was not a stranger to the criminal justice system.

In our view, as the record demonstrates, this was a thoughtful, extensive and comprehensive plea allocution by a patient and experienced trial judge, who elicited an admission to a detailed account of the crime and painstakingly secured defendant’s consent to the waivers of the various rights accorded him in a criminal prosecution, including a waiver of the right to appeal.

Defendant’s argument, with which the concurrence agrees, that the court failed to assure itself that defendant understood what it meant to give up his right to appeal, is belied by the record. As indicated, the court went to great lengths to ensure that defendant understood the rights he was waiving. It is well established that “trial courts are not required to engage in any particular litany during an allocution in order to obtain a valid guilty plea in which defendant waives a plethora of rights” (People v Moissett, 76 NY2d 909, 910-911 [1990]). And, as previously noted, a generalized waiver of the right to appeal, unless specifically limited, will preclude appellate review of all issues, including excessiveness of the sentence (People v Hidalgo, 91 NY2d 733 [1998], supra; see People v Smith, 142 AD2d 195, 199 [1988], affd 74 NY2d 1 [1989]).

There is nothing in the record to indicate, as the concurrence suggests, that the court created the impression that the waiver of the right to appeal was an automatic consequence of pleading guilty. The question as to the waiver of that right was independently and separately asked and unequivocally answered. But, even if the waiver of the right of appeal were part of the panoply of waivers associated automatically with the entry of a guilty plea, it would not affect the validity of the waiver as long as the defendant, by specific question and answer, knowingly, intelligently and voluntarily waived that right. In that regard, it should be noted that, after imposing the promised sentence, the court instructed the clerk as follows: “Even though the defendant waived his right to appeal as part of this plea negotiation, would you advise him of his right to appeal.”

Apparently, the concurrence would require a series of questions of the defendant to establish an adequate record for appellate review of his voluntary and knowing waiver of the right of appeal, a right that is, of course, statutory (see CPL 450.10; People v Seaberg, 74 NY2d at 7), not constitutional. Not even the waivers of the right to trial by jury and to confront the People’s witnesses—rights explicitly granted by the federal and state constitutions (US Const 6th Amend; NY Const, art I, § 6)— require such an expansive exposition (see e.g. People v Harris, 61 NY2d 9 [1983]).

The questions “Do you also understand that by pleading guilty you give up your right to appeal the conviction in this case? Do you understand that?” are clear and unambiguous to any layperson. In the context of this plea allocution, they require no further explanation. After all, to the average layperson, a plea of guilty signals the end, not the beginning of litigation (see People v Prescott, 66 NY2d 216, 219-220 [1985], cert denied 475 US 1150 [1986]), especially where, as here, there are no constitutional speedy trial issues or suppression rulings, which survive a guilty plea, for appellate review (People v Green, 146 AD2d 281, 283, 284 [1989], affd 75 NY2d 902 [1990], cert denied 498 US 860 [1990]).

As we read the concurrence, although it concedes that no particular litany of questions is required to establish a knowing and voluntary waiver of the right of appeal (People v Callahan, 80 NY2d at 283), it presumes the inadequacy of the waiver in the absence of further questioning on the subject by the court or defense counsel. Fortunately, this is not the prevailing law.

In the countless appeals we have heard challenging the validity of the waiver of the right of appeal, rarely have we seen a record so amply revealing a knowing, intelligent and voluntary waiver of a defendant’s rights, including the right to appeal. In light of such a record, this is hardly the case to cite as an example of a faulty waiver.

Finally, were we to reach the issue, we would find there is no basis upon which to reduce the sentence.

Accordingly, the judgment of the Supreme Court, Bronx County (Roger S. Hayes, J.), rendered August 28, 2002, convicting defendant, upon his plea of guilty, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 10 years, should be affirmed.