This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 78
The People &c.,
            Respondent,
        v.
Rasaun Sanders, &c.,
            Appellant.




          Mark Diamond, for appellant.
          Jennifer Spencer, for respondent.




STEIN, J.:
          In this appeal, we are asked to consider whether a plea
colloquy was adequate to effect a valid waiver of the right to
appeal by a criminal defendant.   The record here, including the
plea colloquy and the other relevant facts, such as proof of
defendant's experience and background, is sufficient to uphold

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defendant's waiver of his right to appeal was voluntary, knowing
and intelligent.
                                I.
          In the course of a May 2009 gang assault of the 16-
year-old victim, defendant stabbed the victim in the chest with a
knife, killing him.   Upon his arrest, defendant received his
Miranda warnings and, after approximately two hours of
questioning, admitted to the stabbing.   He was charged in an
indictment with murder in the second degree, gang assault in the
first degree and criminal possession of a weapon in the third
degree.   After defendant's motion to suppress his statements was
denied in part, he pleaded guilty on the eve of trial to
manslaughter in the first degree and gang assault in the first
degree.
          During the plea colloquy, County Court set forth the
terms of the plea, and the prosecutor conducted the voir dire
examination.1   The prosecutor discussed the rights normally
forfeited upon a plea of guilty, inquired as to whether defendant
was pleading voluntarily because he was guilty, and reviewed


     1
        The parties have not addressed -- either in this Court or
in the courts below -- the fact that the prosecutor, as opposed
to the trial court, conducted most of the plea allocution.
Although the Appellate Division Departments are divided on the
propriety of the delegation of this important function, it has
been "long criticized" (People v Robbins, 33 AD3d 1127, 1129
[2006]) and we are troubled by it, as well. As we noted in
People v Nixon (21 NY2d 338, 353 [1967], cert denied 393 US 1067
[1969]), the conduct of the plea allocution is "best left to the
discretion of the court."

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potential collateral consequences of the plea with him.   The
prosecutor also advised defendant of the consequences he could
face if he failed to voluntarily appear for sentencing or
committed another crime prior thereto.   Regarding the waiver of
the right to appeal, the following exchange then took place
between the prosecutor and defendant:
          "Q Do you understand that as a condition of
          this plea you are waiving the right to appeal
          your conviction and sentence to the Appellate
          Division Second Department?
          A Yes.
          Q Have you discussed this waiver of the
          right to appeal with your attorney?
          A Yes.
          Q In consideration of this negotiated
          plea[,] do you now voluntarily waive your
          right to appeal your conviction and sentence
          under this indictment?
          A Yes."
          Immediately thereafter, the prosecutor asked defense
counsel whether he was "withdraw[ing] all motions made by you
whether pending or decided?"   Counsel responded "Yes, withdrawn."
The prosecutor conducted the factual allocution and the court
accepted the plea.   Defendant was thereafter sentenced, as a
predicate violent felony offender, to an aggregate term of 20
years in prison, to be followed by five years of postrelease
supervision.
          Defendant filed a pro se notice of appeal.   The
Appellate Division, Second Department affirmed, concluding that
defendant's valid waiver of the right to appeal barred his
challenge to County Court's suppression ruling (112 AD3d 748,


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748-750 [2013]).   A dissenting Justice of the Appellate Division
granted defendant leave to appeal, and we now affirm.
                                II.
           In People v Seaberg, this Court recognized for the
first time that a defendant may waive his or her statutory right
to an initial appeal, provided that the waiver is "not only . . .
voluntary but also knowing and intelligent" (74 NY2d 1, 11
[1989]).   We explained that a trial court must review the waiver
and "determine[] [whether] it meets those requirements by
considering all the relevant facts and circumstances surrounding
the waiver, including the nature and terms of the agreement and
the age, experience and background of the accused" (id.; see
People v Calvi, 89 NY2d 868, 871 [1996]; People v Callahan, 80
NY2d 273, 280, 283 [1992]).   The trial court must also ensure
that defendant's "full appreciation of the consequences" and
understanding of the terms and conditions of the plea, including
a waiver of the right to appeal, are apparent on the face of the
record (Seaberg, 74 NY2d at 11; Callahan, 80 NY2d at 280).    In
that regard, we emphasized in Seaberg that the trial "court
should have required [the defendant] to state his understanding
and acceptance" of the details of the plea bargain on the record
(74 NY2d at 11); nevertheless, we upheld the waiver in that case
despite the fact that the defendant did not personally
participate in the court's colloquy with his counsel, given the
other relevant facts on the record that demonstrated the


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defendant's understanding of the waiver (see id. at 11-12; see
also People v Moissett, 76 NY2d 909, 911 [1990]).
           Although we have since "underscore[d] the critical
nature of a court's colloquy with a defendant explaining the
right relinquished by an appeal waiver" (People v Lopez, 6 NY3d
248, 253 [2006]), we have continued to require assessment of all
of the relevant factors surrounding the waiver, including the
experience and background of the accused (see People v Bradshaw,
18 NY3d 257, 264-265 [2011]).   Moreover, we have never abandoned
our oft-stated instruction that "a trial court need not engage in
any particular litany when apprising a defendant pleading guilty
of the individual rights abandoned" (Lopez, 6 NY3d at 256; see
Bradshaw, 18 NY3d at 265; People v Kemp, 94 NY2d 831, 833 [1999];
Callahan, 80 NY2d at 283).   Contrary to defendant's argument,
this Court has not -- in People v Nicholson, a companion case
decided with Lopez, or in any other case -- set forth the
absolute minimum that must be conveyed to a pleading defendant in
the plea colloquy in order for the right to appeal to be validly
waived.   We have long rejected that approach on the ground that
"a sound discretion exercised in cases on an individual basis is
best rather than to mandate a uniform procedure which, like as
not, would become a purely ritualistic device . . . [that]
eliminate[s] thinking" (People v Nixon, 21 NY2d 338, 355 [1967],
cert denied 393 US 1067 [1969]).




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                                III.
          With those principles in mind, we conclude that the
record before us sufficiently demonstrates that defendant
knowingly and intelligently waived his right to appeal.   There is
no meaningful distinction between the plea colloquy here and the
colloquy upheld in Nicholson, in which defendant acknowledged his
understanding that he was "giving up [his] right to appeal, that
is, to take to a higher court than this one any of the legal
issues connected with this case" (Nicholson, 6 NY3d at 254).    As
in Nicholson, the plea colloquy here was sufficient because
County Court adequately described the right to appeal without
lumping it into the panoply of rights normally forfeited upon a
guilty plea.   In fact, the People went even further in this case
and obtained defendant's confirmation that he had discussed the
waiver of the right to appeal with his attorney and that he was
waiving such right in consideration of his negotiated plea, as
well as counsel's confirmation that all motions pending or
decided were being withdrawn.   Thus, while the better practice
would have been to define the nature of the right to appeal more
fully -- as the court did in Nicholson -- the Appellate Division
correctly determined that no further elaboration was necessary on
the phrase "right to appeal your conviction and sentence to the
Appellate Division Second Department" in view of the whole
colloquy, particularly given this defendant's background,
including his extensive experience with the criminal justice
system and multiple prior guilty pleas that resulted in terms of

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imprisonment.2
          Under these circumstances, defendant's valid, general
waiver of the right to appeal precludes his challenge to County
Court's adverse suppression ruling (see Kemp, 94 NY2d at 833).
Accordingly, the order appealed from should be affirmed.




     2
       While the factors raised by the dissent -- whether a
defendant has previously entered a guilty plea waiving rights to
appeal, signed a written appeal waiver or taken a prior appeal --
certainly would be relevant to determining defendant's
understanding of the terms of a waiver, this Court's review of a
defendant's background, as it impacts upon the validity of an
appeal waiver, has not been so confined (see People v Bradshaw,
18 NY3d 257, 265-266 [2011]; People v Seaberg, 74 NY2d 1, 11-12
[1989]). Here, as reflected in the transcript of the Sandoval
hearing and the violent predicate felony conviction statement
submitted to the court, defendant was 27 years old at the time of
the plea and had a criminal history that stretched back 10 years.
His prior convictions obtained upon guilty pleas, include a 2003
violent felony in New York, as well as federal, New Jersey and
Pennsylvania convictions. Defendant was also convicted of a
federal felony while on parole and was on supervised release at
the time of the stabbing in this case.

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People of the State of New York v Rasaun Sanders
No. 78




RIVERA, J.(dissenting):
          For the reasons set forth in the dissent below, I would
find defendant's waiver invalid under our prior precedent and,
accordingly, I would remit the matter to the Appellate Division
for consideration of the merits of his suppression claim.    I
write separately to briefly address the majority's treatment of
two significant issues.
          First, the majority concludes "there is no meaningful
distinction" between the plea colloquy challenged on this appeal
and the colloquy this Court found sufficient in People v
Nicholson (see majority op at 6).   However, the majority
acknowledges the trial court here could have "define[d] the
nature of the right to appeal more fully -- as the court did in
Nicholson" (id. at 7).    Nevertheless, the majority concludes that
defendant's plea colloquy, with its reference to waiver of an
appeal from his "conviction and sentence to the Appellate
Division Second Department" is legally sufficient because of
defendant's "background and extensive experience with the
criminal justice system" (id.).
          I disagree with the majority's suggestion that a
defendant's prior criminal record alone can cure a deficient plea


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allocution.    While defendant's age, experience and background are
factors to be considered in determining whether defendant's
waiver is knowing and intelligent (see People v Seaberg, 74 NY2d
1, 11 [1989]), we have never before held that a defendant's
criminal history, regardless of its length, is dispositive of the
defendant's understanding of the plea.    A defendant's criminal
background history is but one factor and cannot fill in the gaps
when the colloquy fails to properly apprise a defendant of the
rights abandoned by entering a plea agreement (see id. [the court
must determine "all relevant facts and circumstances surrounding
the waiver"]).    Nor can the defendant's record absolve a court
from its responsibility to ascertain that defendant understands
the nature of the rights waived (see People v Lopez, 6 NY3d 248,
256 [2006]).    Otherwise, taken to its logical conclusion, in
cases involving a defendant with a prior record, the majority's
approach would negate the need for the type of "fuller colloquy"
this Court sanctioned in Nicholson, indeed the need for any
colloquy.    Certainly our precedent neither permits or intends
such outcome.
            This is not to say a defendant's prior background is
irrelevant; we have expressly stated otherwise (see Seaberg, 74
NY2d at 11).    However, the extent to which the defendant's
criminal history is a relevant factor regarding the defendant's
understanding of the specifics of the plea and the rights waived,
depends, for example, on whether a defendant has previously


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entered a plea waiving rights to appeal, signed a written waiver
of such rights, and actually gone through an appellate process.
That information is simply lacking in the record before us.    As
observed by the dissent below, the record fails to establish what
defendant understands of his right to appeal based on his prior
experiences (see People v Sanders, 112 AD3d 748, 753 [2d Dept
2013] [Hall, J. dissenting] ["Indeed, whatever information the
defendant was, or was not, provided with regard to his right to
appeal in those prior criminal proceedings is not in this record.
As a result, this Court is forced to speculate that the defendant
gained an understanding of the nature of his right to appeal from
his prior contacts with the criminal justice system"]).
          Second, as a point of clarification, and like the
majority, I too find "troubling" a trial court's delegation of
the plea allocution to the prosecutor (see majority op at 2 n 1).
As the majority correctly states, under this Court's precedent
"the plea allocution is 'best left to the discretion of the
court'" (see id., citing People v Nixon, 21 NY2d 338, 353-354
[1967], cert denied 393 US 1067 [1969]; see also Lopez, 6 NY3d at
256, citing People v Callahan, 80 NY2d 273, 280 [1992] [stating a
trial court "must make certain that a defendant's understanding
of the terms and conditions of a plea agreement is evident on the
face of the record"]).




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*   *   *   *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Judge Stein. Chief Judge Lippman and
Judges Read, Pigott, Abdus-Salaam and Fahey concur. Judge Rivera
dissents in an opinion.

Decided June 9, 2015




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