        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

120
KA 15-01145
PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,


                    V                              MEMORANDUM AND ORDER

THOMAS R.O., DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


FRANK POLICELLI, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered August 20, 2013. The judgment convicted
defendant, upon his plea of guilty, of burglary in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
reversed as a matter of discretion in the interest of justice, the
conviction is vacated, defendant is adjudicated a youthful offender,
and the matter is remitted to Oneida County Court for sentencing.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of burglary in the second
degree (Penal Law § 140.25 [2]) and, in appeal No. 2, he appeals from
a judgment convicting him upon his plea of guilty of robbery in the
first degree (§ 160.15 [3]). County Court sentenced defendant to
concurrent terms of incarceration, the greater of which is a
determinate term of eight years and a period of postrelease
supervision of five years.

     At the outset, with respect to both appeals, we agree with
defendant that his waiver of the right to appeal is invalid. Before
this Court may enforce a waiver of the right to appeal, we must
examine the record “to ensure that the waiver was voluntary, knowing
and intelligent” (People v Callahan, 80 NY2d 273, 283; see People v
Seaberg, 74 NY2d 1, 11). “It is the trial court’s responsibility, ‘in
the first instance,’ to determine ‘whether a particular [appellate]
waiver satisfies these requirements’ ” (People v Bradshaw, 18 NY3d
257, 264, quoting Callahan, 80 NY2d at 280). In making that
determination, the court must consider “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” (Seaberg, 74 NY2d at 11). Further, while “ ‘a trial court
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need not engage in any particular litany’ or catechism in satisfying
itself that a defendant has entered a knowing, intelligent and
voluntary appeal waiver, [it] ‘must make certain that a defendant’s
understanding’ of the waiver, along with other ‘terms and conditions
of a plea agreement is evident on the face of the record’ ” (Bradshaw,
18 NY3d at 265, quoting People v Lopez, 6 NY3d 248, 256).

     Here, defendant was 19 years old at the time of the plea
proceeding and had no prior experience with the criminal justice
system. In addition, as the court noted during the plea proceeding,
defendant had a history of mental illness and psychiatric
hospitalizations. With respect to the waiver of the right to appeal,
the court advised defendant that it was a condition of the plea, and
defendant stated that he understood. Immediately thereafter, however,
defendant engaged the court in rambling and incoherent questioning
concerning his sentence and doctors. Following that exchange, the
court stated to defendant that it felt “like [they were] going over
and over and over the same thing,” and that defendant was “hearing,
but [he was] not understanding.” Recognizing that the waiver of the
right to appeal was under consideration when defendant initiated that
exchange, the court returned to that subject, asking defendant simply
if he agreed to give up his right to appeal in exchange for the
agreed-upon sentence, and defendant replied, “Yes.”

     In view of defendant’s particular circumstances, i.e., his youth,
inexperience, and history of mental illness, along with his statements
during the plea proceeding, we conclude that defendant’s understanding
of the waiver of the right to appeal is not evident on the face of the
record, and that the waiver is invalid. In reaching that conclusion,
we note that the same oral colloquy may have been adequate in other
circumstances for a defendant of a different “age, experience and
background” (Seaberg, 74 NY 2d at 11). “[T]he same or similar oral
colloquy . . . can produce an appeal waiver that is valid as to one
defendant and invalid as to another defendant” (People v Brown, 122
AD3d 133, 143). Here, however, we “cannot be certain that . . .
defendant comprehended the nature of the waiver of appellate rights”
(Lopez, 6 NY3d at 256). Review of defendant’s challenge to the denial
of his application for youthful offender status is therefore not
foreclosed by the waiver of the right to appeal.

     We agree with defendant’s contention in both appeals that he
should be afforded youthful offender status. It is undisputed that
defendant, who was between the ages of 16 and 19 when the crimes were
committed, is eligible for youthful offender treatment under CPL
720.10 (1) and (2) (see People v Rudolph, 21 NY3d 497, 500). In
determining whether to afford such treatment to a defendant, a court
must consider “the gravity of the crime and manner in which it was
committed, mitigating circumstances, defendant’s prior criminal
record, prior acts of violence, recommendations in the presentence
reports, defendant’s reputation, the level of cooperation with
authorities, defendant’s attitude toward society and respect for the
law, and the prospects for rehabilitation and hope for a future
constructive life” (People v Cruickshank, 105 AD2d 325, 334, affd sub
nom. People v Dawn Maria C., 67 NY2d 625; see People v Shrubsall, 167
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                                                         KA 15-01145

AD2d 929, 930).

     In our view, the only factor weighing against affording defendant
youthful offender treatment here is the seriousness of the crimes (see
Shrubsall, 167 AD2d at 930; Cruickshank, 105 AD2d at 335). At the
time he committed the crimes, defendant had no criminal record or
history of violence (see People v Amir W., 107 AD3d 1639, 1641). The
most significant mitigating circumstance here, defendant’s history of
mental illness, is detailed in the presentence report (PSR), a
memorandum from the Center for Community Alternatives (CCA), and
reports prepared by a psychologist and psychiatrist. All of those
documents indicate that, at the time the crimes were committed,
defendant suffered, inter alia, from bipolar disorder, which had been
misdiagnosed and inappropriately treated with medication that
exacerbated defendant’s manic symptoms. The CCA memorandum further
states that defendant’s behavior during the period between the crimes
“is an aberration from his character and can be directly linked to his
mental illness.” That statement was echoed in numerous letters
submitted on defendant’s behalf from members of the community. The
CCA memorandum states, in addition, that defendant has accepted
responsibility for his actions and expressed genuine remorse for the
effect of his criminal conduct on the victims, and concludes that,
with appropriate treatment, defendant has the capacity for a
productive and law-abiding future. Finally, both the PSR and CCA
memorandum recommend youthful offender treatment (see id. at 1641).

     Although we do not conclude, after weighing the appropriate
factors, that the court abused its discretion in denying defendant
youthful offender status, we nevertheless choose to exercise our
discretion in the interest of justice by reversing the judgments,
vacating the convictions, and adjudicating defendant a youthful
offender, and we remit the matters to County Court for sentencing on
the adjudications (see Cruickshank, 105 AD2d at 335; see generally
People v Jeffrey VV., 88 AD3d 1159, 1160).

     In view of our decision, we do not address defendant’s remaining
contention.

     All concur except CARNI and DEJOSEPH, JJ., who dissent and vote to
affirm in the following memorandum: We respectfully dissent and would
affirm the judgments of conviction inasmuch as we are constrained by
the valid waiver of the right to appeal. We conclude that the record
establishes that the waiver was knowingly, voluntarily, and
intelligently entered (see People v Lopez, 6 NY3d 248, 256). Indeed,
the court explicitly stated as “[o]ne other condition” of defendant’s
guilty plea that defendant would be required to waive his right to
appeal, thereby making clear to defendant “ ‘that the right to appeal
[was] separate and distinct from those rights automatically forfeited
upon a plea of guilty’ ” (People v Dames, 122 AD3d 1336, 1336, lv
denied 25 NY3d 1162; see People v Barber, 117 AD3d 1430, 1430, lv
denied 24 NY3d 1081; People v Ware, 115 AD3d 1235, 1235). We further
conclude that the record as a whole establishes that defendant
understood that the waiver of the right to appeal meant that entry of
the judgments of conviction upon his plea of guilty would constitute
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                                                KA 15-01145

the final disposition of his case.




Entered:   February 11, 2016           Frances E. Cafarell
                                       Clerk of the Court
