People v. Bradshaw

OPINION OF THE COURT

Cipabick, J.

In People v Lopez (6 NY3d 248 [2006]), we emphasized, once again, that “[a] waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (6 NY3d at 256). Applying this standard here, we hold that the record fails to establish that defendant validly waived his right to appeal.

I.

A Kings County grand jury indicted defendant for rape in the first degree and other related charges for an incident that allegedly occurred in the early morning hours of May 11, 2004 near an apartment complex in Brooklyn. In late June 2004, Supreme Court arraigned defendant on the charges and ordered that he submit to an examination pursuant to article 730 of the Criminal Procedure Law to determine whether he was an “incapacitated person.”1

Both a psychiatrist and a psychologist separately evaluated defendant in early August 2004 and they each concluded that defendant was unfit to proceed with his case. The psychiatrist specifically noted that defendant “exhibited] signs of regression” and was “clearly incapable presently of assistance in his defense and stands in need of further inpatient psychiatric care.” The psychiatrist also commented that despite the seriousness of the charges lodged against defendant, he appeared, at times “quite nonplussed by his predicament.” Similarly, the psychologist observed that although she believed that defendant understood more than he acknowledged, defendant could articulate “only a sketchy and inaccurate understanding of the legal process.”

On September 9, 2004, Supreme Court signed an order, on motion of defense counsel, adjudicating defendant an incapacitated person and committing him to the custody of the Commissioner of Mental Health. Following his commitment at the Mid-Hudson Forensic Psychiatric Center (Mid-Hudson), defendant was diagnosed with “Adjustment Disorder with Anxiety and depressed mood.” Over the next several months, he received extensive treatment, which included medication, individual sessions with his psychiatrists and group therapy. In a report dated March 3, 2005, defendant’s psychiatrists determined that he was now competent to return to court, finding improvement in defendant’s cognitive function.

Defendant’s ability to proceed with his case, however, proved short-lived. In August 2005, at Supreme Court’s directive, defendant submitted to a second article 730 examination and was again found unfit to proceed. The same psychiatrist who assessed defendant during the initial article 730 examination opined that “defendant is again, or still, regressed” and seemed “inaccessible” to basic reason. He further remarked that defendant’s responses were “of childish quality.” Accordingly, in September 2005, Supreme Court signed a second order adjudicating defendant an incapacitated person.

While defendant’s treating psychiatrists at Mid-Hudson found him fit to proceed within a month of Supreme Court’s commitment order, defendant’s case did not move forward in a customary fashion. From December 2005 through February 2006, defendant, who was in custody, missed five scheduled court appearances. Defense counsel explained that defendant had been adjudicated an incapacitated person on a felony matter pending in Queens County and had been committed to the same facility where defendant had been treated in connection with this case.2

Defendant finally returned to court in April 2006. Although his case had been adjourned for possible disposition over the course of that month and into May, Supreme Court ordered a third article 730 examination of defendant on May 30, 2006. A different psychiatrist and psychologist examined defendant and while they determined he was fit to proceed, the psychologist stressed that defendant was “in need of a good deal of support by defense counsel, in order to explain the complexity of this case and how it relates to outcomes or plea offers in the other two cases.”

From August to November 2006, defendant appeared in court on four occasions. Throughout this period, the parties advised Supreme Court that the trial courts in the Bronx and in Queens had decided to hold hearings in order to determine defendant’s fitness to proceed with his cases pending in those counties. When defendant returned to court on December 11, 2006 on the instant matter, the hearings in Bronx and Queens Counties had not been completed. In any event, Supreme Court ordered defendant to submit to a fourth article 730 examination on that day.

Following defendant’s February 2007 examination, he was found fit to proceed. The psychologist who evaluated defendant at this time did comment, however, that while defendant was “able to discuss [his cases] and consider his options . . . effective and consistent psychiatric treatment is paramount in maintaining [his] stability and competence.” On February 26, 2007, defendant initially contested the results of this examination and requested a hearing on the matter. Approximately three weeks later, defendant withdrew his request for a hearing and Supreme Court confirmed the results.

In the 12 months that ensued, the parties conducted plea negotiations and apprised the court on the status of defendant’s other open cases. Finally, on February 5, 2008, Supreme Court presided over a suppression hearing to determine the admissibility of certain identification testimony. After the hearing, the court denied defendant’s suppression motion, concluding that the People could introduce complainant’s identification of defendant in a lineup at trial.

The next day, defendant pleaded guilty to first-degree rape in exchange for a promised determinate sentence of nine years imprisonment followed by five years postrelease supervision. The record reveals that Supreme Court only made fleeting references to defendant’s appeal waiver. At the outset of the proceeding, the court enumerated the conditions of the guilty plea, including defendant’s waiver of his right to appeal. The court briefly outlined that an appeal waiver “means, the conviction here is final, that there is not a higher court you can take [the case] to.” When Supreme Court inquired whether defendant understood, defendant only asked the court to clarify its explanation of the mandatory fees associated with his guilty plea. Supreme Court neither confirmed whether defendant comprehended its terse explanation of the nature of the appeal waiver nor did it mention that defendant possessed an inherent right to appeal a judgment of conviction and sentence.

After Supreme Court ascertained that defendant spoke English, it addressed defendant’s previous confinement for “mental illness” and questioned whether defendant felt “well today, psychologically.” Defendant responded, “Yes.” The court also received assurance from defendant that he had not ingested any alcohol or controlled substances impairing his ability to understand these proceedings. The court further explained the rights associated with a jury trial and that defendant’s decision to plead guilty would extinguish this right. Defendant acknowledged that he understood this right that he was forgoing.3

Next, the court inquired, “other than what I have already promised you, which is the nine years[ imprisonment], five years postrelease supervision, waiver of [the] right to appeal, and $270 in fees and fines, has anybody else made any other promise to you in order to get you to plead guilty?” Defendant said, “No” and further stated he had not been threatened or coerced into pleading guilty. Once defendant allocuted to the first-degree rape charge, the court accepted the plea. Right before it adjourned the case for sentencing, Supreme Court simply asked whether the written waiver of the right to appeal had been signed. Defense counsel affirmed that the form had been executed by defendant in his presence and handed it to the court. The court did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it.

The written waiver in this case consists of three sections. The first section, signed by defendant, indicates, in part, that “I execute this waiver after being advised by the court and my attorney of the nature of the rights I am giving up.” The form further states that “I have been advised of my right to take an appeal [and] to prosecute the appeal as a poor person.” The second section, signed by defense counsel, says, in part, that “I represent that prior to the signing of the foregoing waiver, the above-named defendant was fully advised of the rights of a convicted person to take an appeal” in New York. The third section, signed by Supreme Court, states, “[hjaving examined the defendant in open court and on the record, it is the Court’s opinion that the defendant has knowingly and freely waived the right to appeal. Waiver is approved.”

At sentencing, defendant sought to withdraw his guilty plea. He maintained that his attorney misinformed him about the parameters of the plea and he had actually been promised a “MICA [Mentally Ill/Chemically Addicted] therapeutic program.” Supreme Court denied defendant’s request to withdraw his guilty plea and sentenced defendant, a first-time felony offender, as promised. In addition, the court imposed a supplemental sex offender fee.4

The Appellate Division, with two Justices dissenting, reversed the judgment of conviction and sentence. The court held that defendant’s appeal waiver was unenforceable “because . . . Supreme Court provided virtually no explanation regarding the waiver and took no measures to ensure that he, a first-[time] felony offender with a history of mental illness, understood it and was validly waiving his right to appeal” (People v Bradshaw, 76 AD3d 566, 568 [2d Dept 2010]). While the majority acknowledged that, in certain instances, “a detailed written waiver can supplement a trial court’s on-the-record explanation of what a waiver of the right to appeal entails, and clarify possible ambiguities in that explanation,” it concluded, given Supreme Court’s “extremely perfunctory” discussion of the waiver, that this was not such a case (id. at 569). Having determined that defendant retained his right to appeal the denial of his suppression motion, the court further agreed with defendant that complainant’s lineup identification of defendant should have been suppressed since the “hearing record is inadequate to establish that his arrest was supported by probable cause” (id. at 570). Finally, the court noted that Supreme Court erred in imposing the supplemental sex offender fee “because the crime was committed prior to the effective date” of the statute providing for such fee (id. at 573).

The dissenting Justices would have modified the judgment of conviction and" sentence to the extent that it was improper for Supreme Court to impose a supplemental sex offender fee, and, as so modified, would have affirmed (see id. at 581). The dissenters, relying on this Court’s holding in People v Ramos (7 NY3d 737 [2006]), concluded that Supreme Court’s colloquy with defendant during the plea proceeding, combined with the executed written waiver form, demonstrated that “defendant effectively waived his right to appeal,” foreclosing any “review of the denial of suppression of identification testimony” (id. at 579). Notwithstanding this position, the dissenters also opined that Supreme Court’s denial of defendant’s suppression motion was appropriate since the hearing record sufficiently established that defendant was in lawful custody at the time that complainant identified him in the lineup (see id. at 580-581).

A Justice of the Appellate Division granted the People leave to appeal (15 NY3d 896 [2010]) and we now affirm.

II.

It is well settled that plea bargaining is “a vital part of our criminal justice system” (People v Seaberg, 74 NY2d 1, 7 [1989]). “In addition to permitting a substantial conservation of prosecutorial and judicial resources, it provides a means where, by mutual concessions, the parties may obtain a prompt resolution of criminal proceedings with all the benefits that enure from final disposition” (id.). Of course, plea bargaining “necessarily includes the surrender of many guaranteed rights,” such as “the right to a jury trial or the privilege against self-incrimination” (id.). Citing the United States Supreme Court’s decision in Schick v United States (195 US 65, 72 [1904]), we observed that absent a constitutional or statutory mandate or public policy considerations, “an accused may waive any right which he or she enjoys” (id.). In Seaberg, we recognized that in New York an accused’s statutory right to an initial appeal (see CPL 450.10) is among the rights that may be relinquished (see id. at 7-8).

As noted earlier, “[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 NY3d 248, 256 [2006]; see also People v Calvi, 89 NY2d 868, 871 [1996]; People v Callahan, 80 NY2d 273, 280 [1992]). An appellate waiver meets this standard when a defendant has “a full appreciation of the consequences” of such waiver (Seaberg, 74 NY2d at 11). To that end, a defendant must comprehend that an appeal waiver “is separate and distinct from those rights automatically forfeited upon a plea of guilty” (Lopez, 6 NY3d at 256).

It is the trial court’s responsibility, “in the first instance,” to determine “whether a particular [appellate] waiver satisfies these requirements” (Callahan, 80 NY2d at 280). After all, the trial court “is in the best position to assess all of the relevant factors” (id.) “surrounding the waiver, including the nature and terms of the agreement and the age, experience and background of the accused” (Seaberg, 74 NY2d at 11 [emphasis added]). In addition, “though a trial court need not engage in any particular litany” or catechism in satisfying itself that a defendant has entered a knowing, intelligent and voluntary appeal waiver, a trial court “must make certain that a defendant’s understanding” of the waiver, along with the other “terms and conditions of a plea agreement is evident on the face of the record” (Lopez, 6 NY3d at 256; see also Callahan, 80 NY2d at 283 [a valid appeal waiver “cannot be inferred from a silent record”]).

We applied these principles in People v DeSimone, a companion case decided in conjunction with our decision in Callahan. There, the record established that the defendant signed a written waiver of his right to appeal, although there was no mention of this waiver by the court during the plea proceeding (see DeSimone, 80 NY2d at 279). Consequently, we held that “the record simply [did] not afford a sufficient basis for concluding that [the] defendant’s waiver of his right to appeal was knowing, intelligent and voluntary” (id. at 283). In that regard, we observed that there was not only “no record discussion between the court and [the] defendant concerning the waiver” but there was also no “attempt by the court to ascertain on the record an acknowledgment from [the] defendant that he had, in fact, signed the waiver or that, if he had, he was aware of its contents” (id.). We further noted that the court appeared to have “no prior knowledge of the waiver” and was certainly unaware of “the circumstances surrounding the document’s [purported] execution” (id.).

Although the record before us here is not as bleak as the record in DeSimone, we likewise conclude it does not sufficiently demonstrate that defendant validly waived his right to appeal because the trial court failed to ensure that defendant grasped the minimal information pertaining to the appeal waiver it provided during the plea colloquy. Following Supreme Court’s description of the appeal waiver, it questioned whether defendant comprehended the court’s remarks. Defendant answered by simply asking about the mandatory fees associated with his guilty plea. At this juncture, or at least prior to the completion of the plea proceeding, Supreme Court should have assured itself that defendant adequately understood the right that he was forgoing.

The absence of this inquiry is particularly troubling given defendant’s background and history of mental illness. In the nearly four years between defendant’s indictment and his guilty plea, Supreme Court ordered, on this case alone, that he submit to four article 730 examinations. Of those four examinations, defendant was found unfit to proceed with his case on two occasions, causing lengthy delays in the case. Indeed, the reports furnished by the mental health professionals painstakingly described defendant’s diminished mental capacity. As indicated earlier, they revealed that he was “inaccessible,” “regressed” and “nonplussed by his predicament.” One psychologist commented that defendant possessed “only a sketchy and inaccurate understanding of the legal process.” Even in one of the instances where defendant was competent to proceed with his case, a different psychologist warned that defendant was “in need of a good deal of support by defense counsel, in order to explain the complexity of this case and how it relates to outcomes or plea offers in the other two cases.” These circumstances, combined with the knowledge that defendant was a first-time felony offender who had been ordered to submit to article 730 examinations in two other counties, should have alerted the trial court not only to give defendant a thorough explanation of the appeal waiver but also to make sure that defendant fully grasped the nature of this fundamental right that he was forgoing (see Callahan, 80 NY2d at 280 [“the trial court ... is in the best position to assess all of the relevant factors, including . . . the age(,) experience (and background) of the accused”]).

Nevertheless, the People, the dissenting Justices at the Appellate Division and the dissent here espouse that the oral colloquy during the plea proceeding combined with the written waiver mandates a finding that defendant’s appeal waiver was effective. To support this position, they heavily rely on our decision in People v Ramos (7 NY3d 737 [2006]). We reject this argument and conclude that Ramos is distinguishable from the case at bar.

During the plea proceeding in Ramos, the trial court stated,

“you also understand by entering this plea of guilty you’re giving up any and all rights to appeal this conviction and sentence; in other words, this is now final. Once you agree to do this, not only will there not be any trial but there won’t be any appeals. Do you understand that this is final?”

Defendant Ramos acknowledged that he understood. We held that this oral colloquy, even if it was ambiguous, combined with the written waiver, which “stated that [the] defendant had the right to appeal, explained the appellate process and confirmed that defense counsel fully advised him of the right to take an appeal” under New York law “establishes that [the] defendant knowingly, intelligently and voluntarily waived his right to appeal” (Ramos, 7 NY3d at 738).

We observe that the oral colloquy in Ramos was perfunctory just as the oral colloquy was here. We also recognize that a review of the record in both cases reveals that the written waivers used were identical. Nonetheless, the critical distinction between these two cases is that the defendant in Ramos, unlike here, orally acknowledged on the record that he understood that he was forgoing his right to appeal. Thus, we concluded in Ramos that defendant’s oral confirmation that he comprehended the nature of the appeal waiver in conjunction with the supplemental written waiver form satisfied the requirement that defendant’s understanding of the appeal waiver was “evident on the face of the record” (Lopez, 6 NY3d at 256). Here, by contrast, defendant never orally confirmed that he grasped the concept of the appeal waiver and the nature of the right he was forgoing. Therefore, as in DeSimone, notwithstanding the written appeal waiver form, it cannot be said that defendant knowingly, intelligently and voluntarily waived his right to appeal (see 80 NY2d at 283).

We disagree with the dissent’s suggestion that we have “transformed the taking of an appeal waiver” into a “game of chance,” akin to the purchase of a lottery ticket (dissenting op at 268). Indeed, we advance no new rule today. Rather, we are simply applying our sound decisions—as we must—in Seaberg, Callahan, DeSimone, Lopez and Ramos to the particular circumstances of this case. And this precedent makes clear that “[t]o facilitate appellate review,” it is the trial court’s obligation “to ensure” that a defendant’s understanding of the appeal waiver is “made apparent on the face of the record” (Callahan, 80 NY2d at 280; see also Lopez, 6 NY3d at 256). In Ramos, the trial court met this obligation by eliciting an oral response on the record from defendant that he comprehended the appeal waiver. That oral assurance, combined with the signed written waiver, permitted a finding that the defendant entered into a knowing, voluntary and intelligent appeal waiver. Since there is no evidence from the oral colloquy that Supreme Court adequately assured itself that defendant understood the nature of the appeal waiver, our precedents require a finding that the appeal waiver was invalid.

Finally, we agree with the Appellate Division that testimony concerning complainant’s identification of defendant in a lineup should have been suppressed since the People did not meet their burden in establishing probable cause for defendant’s arrest.

Accordingly, the order of the Appellate Division should be affirmed.

1 “ ‘Incapacitated person’ means a defendant who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense” (CPL 730.10 [1]).

2 On a subsequent court date in May 2006, Supreme Court was also informed that defendant had a case pending in Bronx County and an article 730 examination had been ordered there as well.

3 The court also advised defendant that his guilty plea may subject him to civil confinement pursuant to article 10 of the Mental Hygiene Law.

4 At sentencing, defendant also requested to proceed pro se, expressing discontent with his attorney’s representation. Supreme Court sentenced defendant without addressing this issue.