                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 25, 2015                     106899
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

MARTIN O. POPE JR.,
                    Appellant.
________________________________


Calendar Date:   April 27, 2015

Before:   McCarthy, J.P., Lynch, Devine and Clark, JJ.

                             __________


     Abbie Goldbas, Utica, for appellant.

      William G. Gabor, District Attorney, Wampsville (Elizabeth
S. Healy of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of Madison
County (McDermott, J.), rendered June 9, 2014, convicting
defendant upon his plea of guilty of the crime of criminal
contempt in the first degree.

      Defendant pleaded guilty to criminal contempt in the first
degree and waived his right to appeal. He was thereafter
sentenced, as a second felony offender, to 1¾ to 3½ years in
prison, to be served concurrently with a sentence that he was
already serving. Defendant now appeals.

      Initially, our review of the record leads us to conclude
that defendant did not knowingly, intelligently and voluntarily
waive the right to appeal. When an appeal waiver is challenged,
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the operative question is whether the trial court has confirmed
on the record that the defendant understands the terms and
conditions of his or her plea agreement (see People v Sanders,
___ NY3d ___, ___, 2015 NY Slip Op 04755, *2 [2015]; People v
Lopez, 6 NY3d 248, 256 [2006]). A review of the plea allocution
here shows that County Court was the first to raise an appeal
waiver as a condition of the plea, and then gave the following
explanation: "Now, it doesn't matter whether guilt is a result of
a plea of guilty or a jury verdict. Either way you have a right
to appeal. And the appeal would go to a higher court called the
Appellate Division. These are five judges that sit together
in Albany. They review the record of what happened here. If
they find any mistakes were made or any of your rights violated
they could vacate the conviction, reduce or throw out the
sentence, or send everything back to me and have me do it all
over again from the top. So you understand all of that?"
Defendant simply responded "yes" and nothing more was said about
the appeal waiver.

      The flaw here is that while County Court clearly explained
the right to appeal, it failed to come back around to the point
that defendant was actually waiving that distinct right. From
his one-word response, we are left uncertain as to whether
defendant understood the right to appeal or the plea requirement
that he was waiving that right. Nor did the court inquire of
defendant as to whether he discussed the waiver with counsel, who
stood by without comment (see People v Phipps, 127 AD3d 1500,
1501 [2015]). This deficiency in the record was not cured when
defendant was asked to sign an appeal waiver later that same day
at sentencing, for the court engaged in no substantive discussion
with defendant or his attorney as to whether defendant
comprehended the waiver. Finally, there is no explanation in the
written waiver that "the right to appeal is separate and distinct
from those rights automatically forfeited upon a plea of guilty"
(People v Lopez, 6 NY3d at 256). As such, we conclude that the
appeal waiver is invalid. That being said, defendant's challenge
to the voluntariness of his plea due to the asserted ineffective
assistance of counsel attendant the appeal waiver was not
preserved by a postallocution motion to withdraw his plea, and
nothing was said during the plea colloquy to trigger the narrow
exception to the preservation requirement (see People v Lopez, 71
                               -3-                106899

NY2d 662, 665-666 [1988]; People v Ortiz, 127 AD3d 1416, 1417
[2015]). Accordingly, we affirm the judgment of conviction.

      McCarthy, J.P., and Clark, J., concur.


Devine, J. (concurring).

      I have no quarrel with the affirmance of the judgment of
conviction. I write, rather, to express my belief that defendant
knowingly, intelligently and voluntarily waived his right to
appeal from the conviction and sentence.

      "A waiver of the right to appeal may be elicited as a
condition of a plea bargain, but it must be knowingly,
voluntarily and intelligently entered into by the accused"
(People v Johnson, 14 NY3d 483, 486 [2010] [citations omitted];
see People v Bradshaw, 18 NY3d 257, 264 [2011]). It has long
been the rule that "there is no mandatory litany that must be
used in order to obtain a valid waiver of appellate rights"
(People v Johnson, 14 NY3d at 486; see People v Sanders,      NY3d
   ,    , 2015 NY Slip Op 04755, *2 [2015]). Rather than
requiring a trial court to blindly follow a uniform procedure, it
need only ensure on the record that "a defendant has a full
appreciation of the consequences of such waiver . . . [and]
comprehend[s] that an appeal waiver is separate and distinct from
those rights automatically forfeited upon a plea of guilty"
(People v Bradshaw, 18 NY3d at 264 [internal quotation marks and
citations omitted]; see People v Lopez, 6 NY3d 248, 256 [2006]).
In so doing, the trial court must assess all of the relevant
factors "surrounding the waiver, including the nature and terms
of the agreement and the age, experience and background of the
accused" (People v Seaberg, 74 NY2d 1, 11 [1989]; see People v
Sanders, 2015 NY Slip Op 04755 at *2).

      Initially, defendant was only 24 years old at the time that
he pleaded guilty, but he is a second felony offender, and his
extensive prior involvement with the criminal justice system must
be taken into account in assessing whether he knowingly and
intelligently waived his right to appeal (see People v Sanders,
2015 NY Slip Op 04755 at *3). Regarding the waiver itself,
                               -4-                106899

County Court advised defendant during the plea colloquy as to the
meaning of the right to appeal, specified that an appeal could be
taken from either "a plea of guilty or a jury verdict," and made
clear that "a waiver of [defendant's] right to appeal" would be
the "final thing" required under the plea offer. Although "[a]
better practice might have been to explain to defendant that
though he ordinarily retains the right to an appeal even after
pleading guilty, in this case he was being offered a particular
plea by the prosecution on the condition that he give up that
right," the failure by County Court to go into that level of
detail did not render the waiver invalid (People v Lopez, 6 NY3d
at 257 [emphasis added]). Defendant then indicated that he
understood and conferred with defense counsel, after which he
questioned County Court extensively regarding jail time credit,
but raised no issues regarding the appeal waiver.

      The plea colloquy accordingly reveals no confusion on the
part of defendant as to the appeal waiver but, even if it did,
any confusion was quickly dispelled later that day at sentencing.
At that point, the record demonstrates that defendant consulted
with counsel and executed a written document declaring in bold
print that it is a "waiver of [the] right to appeal and other
rights." The written waiver goes on to explain the right to
appeal, and defendant acknowledged in it that he had "been
advised of, and waive[d], [his] right to appeal from the judgment
of conviction or sentence." Defendant then reiterated in the
written waiver that he had been "fully informed" of his right to
appeal and was "voluntarily and knowingly" waiving it after
discussing the matter with counsel.1 These facts, in my view,
demonstrate that there was a sufficient "judicial examination of
the waiver itself with a manifestation [of understanding by
defendant] expressed on the record" (People v Calvi, 89 NY2d 868,
871 [1996]), and that the waiver "reflect[ed] a knowing and
voluntary choice" by defendant (People v Callahan, 80 NY2d 273,


     1
        It is somewhat peculiar for a written appeal waiver to be
executed at sentencing after the waiver is discussed during a
plea colloquy, but we have previously found such a procedure to
be acceptable (see People v Collins, 53 AD3d 932, 933 [2008], lv
denied 11 NY3d 831 [2008]).
                              -5-                  106899

280 [1992]). I would therefore find that defendant had validly
waived his right to appeal from the conviction and sentence
(see People v Ramos, 7 NY3d 737, 738 [2006]; People v McCaskill,
76 AD3d 751, 752-753 [2010]).



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
