Summary
This Appellate Division, Fourth Department opinion reviews a defendant's appeal from a guilty plea conviction for attempted criminal possession of a weapon in the second degree. The court holds that the defendant's waiver of appellate rights was invalid because it inaccurately portrayed the waiver as an absolute bar to appeals and postconviction relief. Although the defendant raises constitutional and procedural challenges regarding his persistent violent felony offender sentencing designation, the court finds these issues were not preserved for review. The judgment of conviction is unanimously affirmed.
Topics
Practice areas
Questions Presented
- Whether the waiver of the right to appeal was valid.
- Whether sentencing as a persistent violent felony offender violated constitutional requirements and CPL 400.15(2).
- Whether the defendant preserved these contentions for appellate review.
Holdings
- The waiver of the right to appeal is invalid because the oral and written waivers mischaracterized the nature of the right and failed to preserve appellate review for certain issues.
- The court declines to exercise its discretionary power to review the sentencing contention and affirms the judgment.
Key quotations
“We agree with defendant, and the People correctly concede, that the waiver of the right to appeal is invalid. Supreme Court's "oral waiver colloquy and the written waiver signed by defendant together 'mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal and the attendant rights to counsel and poor person relief, as well as a bar to all postconviction relief, and there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues'".”
Factual background
Defendant pleaded guilty to attempted criminal possession of a weapon in the second degree, admitted prior convictions, and was sentenced as a persistent violent felony offender.
Procedural history
The Supreme Court, Monroe County rendered a judgment on November 29, 2017 convicting the defendant upon his guilty plea. The People appealed, and the Appellate Division reviewed the waiver of appeal and sentencing issues.