This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 12
The People &c.,
            Respondent,
        v.
Raymond Leach,
            Appellant.




          Steven A. Feldman, for appellant.
          Elizabeth L. Schulz, for respondent.




MEMORANDUM:
          The order of the Appellate Division should be affirmed.
          Regardless of the validity of defendant's appeal
waiver, his challenge to the voluntariness of his guilty plea is
unpreserved for appellate review (see People v Peque, 22 NY3d
168, 182 [2013]).   Contrary to defendant's contention, the narrow


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exception to the preservation requirement does not apply in this
case (see People v Lopez, 71 NY2d 662, 666 [1988]).




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People v Raymond Leach
No. 12




RIVERA, J.(concurring):
           I concur in the result, but write separately to address
the invalidity of defendant's post-plea waiver, obtained at
defendant's post-plea, non-contemporaneous sentencing proceeding.
The issue is preserved, and the propriety of these types of
waivers is likely to evade our review, when, as here, a defendant
challenges the severity of a sentence in the Appellate Division,
but completes the sentence prior to a decision from this Court.
The fact that the Appellate Division previously rejected waivers
obtained in the course of this same sentencing procedure, but
found defendant's waiver valid in this case makes plain the
confusion surrounding the possible effect of a court's post-plea
explanation of a defendant's appellate rights on the validity of
the waiver.
           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].   "An appellate waiver meets this standard when a
defendant has 'a full appreciation of the consequences' of such
waiver" (People v Bradshaw, 18 NY3d 257, 264 [2011], quoting
People v Seaberg, 74 NY2d 1, 11 [1989]).   As the Court has made


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clear, "[t]he record must establish that the defendant understood
that the right to appeal is separate and distinct from those
rights automatically forfeited upon a plea of guilty--the right
to remain silent, the right to confront one's accusers and the
right to a jury trial" (Lopez, 6 NY3d at 256).   Therefore, a
waiver is ineffective where the court mischaracterizes the nature
of the right to appeal (People v Billingslea, 6 NY3d 248, 257
[2006] [decided with People v Lopez]), commingles appellate
rights with rights that survive a plea (Lopez, 6 NY3d at 256),
and engages in a colloquy consisting of a one-word response to
whether the defendant understood the conditions of the plea (id.
at 257; People v Ramos, 7 NY3d 737 [2006]), or where defendant,
notwithstanding a written waiver, "never orally confirmed that
[defendant] grasped the concept of the appeal waiver and the
nature of the right [defendant] was forgoing" (compare Bradshaw,
18 NY3d at 261, and People v Desimone, 80 NY2d 273, 283 [1992],
with Ramos, 7 NY3d 737).
          Here, the record fails to establish defendant made a
knowing, intelligent, and voluntary waiver of his appellate
rights because during the plea colloquy the court made but two
passing references to the waiver of the right to appeal, neither
of which distinguished his appellate rights in a manner
sufficient to establish his "full appreciation of the
consequences" of relinquishing his right to appeal (Bradshaw, 18
NY3d at 265).   After explaining the rights forfeited by the plea,


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the court informed defendant that the sentence agreed to was
contingent upon defendant "keep[ing] promises to the Court and
the People," specifically that between the plea and sentencing
dates, defendant not violate the law or get arrested, cooperate
with probation during the presentence investigation, and that he
return as scheduled for sentencing.    In the context of this
explanation about the post-plea requirements, the court told
defendant "you must waive and give up your right to appeal."      The
court then asked as a general matter whether the defendant
understood the "plea promise," to which defendant responded
"yes."   After further colloquy, which confirmed defendant was
pleading guilty to the charges and understood he was giving up
his trial rights, the court asked if defendant had spoken with
his attorney "about the facts of this case, your plea of guilty,
the charge you're pleading guilty to, your waiver of right to
appeal, the possible sentence that could be imposed upon you, any
legal defenses you have to the charges . . . ."    Defendant
replied in the affirmative.
           The court's "fleeting references" to the right to
appeal at the plea hearing, bundled with the post-plea conditions
imposed by the court and its questions regarding defendant's
discussions with counsel about all matters of importance to the
case, was inadequate to ensure a reviewing court that "defendant
comprehended the nature of the waiver of appellate rights" (see
Lopez, 6 NY3d at 256; Bradshaw, 18 NY3d at 261 [the court "made


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fleeting references to defendant's appeal waiver"]).
          Nevertheless, the People argue that defendant's waiver
is knowing, intelligent, and voluntary because the court
explained defendant's right to appeal during the sentencing
procedure.    According to the record, at the sentencing hearing
held a month after defendant pleaded guilty, after pronouncing
sentence the court directed the Court Clerk to read defendant his
right to appeal, and defendant signed a written waiver.     Only
then did the court proceed to explain defendant's appellate
rights and inquire as to whether he understood those rights.
Contrary to the People's position, under our law, a post-plea
colloquy at a sentencing hearing, conducted after defendant has
considered the options presented and chosen to plead guilty based
on an understanding of the avenues available to the defendant,
cannot serve as record-basis for establishing the validity of the
waiver of the right to appeal.
          "It is the trial court's responsibility 'in the first
instance,' to determine 'whether a particular [appellate] waiver
satisfies these requirements' " (Bradshaw, 18 NY3d at 264,
quoting People v Callahan, 80 NY2d 273, 280 [1992] [alteration in
original]).    In order for a trial court's inquiry to be
meaningful, by logic and reason, it must be part of the colloquy
in which a court engages prior to accepting a defendant's plea
(id. at 265).    It would make little sense, and serve only to
encourage the filing of a motion to vacate the plea on the ground


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that defendant did not appreciate the consequences of the waiver,
if a court confirmed, after-the-fact, whether the defendant
understood the nature of the rights relinquished.   Thus, a court
complies with its obligation to ensure that the waiver is
knowing, intelligent, and voluntary, when a court adequately
explains to defendant the "separate and distinct" right to appeal
(Lopez, 6 NY3d at 256), and "at least prior to the completion of
the plea proceeding, [the court] assure[s] itself that defendant
adequately understood the right that [defendant] was forgoing"
(Bradshaw, 18 NY3d at 255).   Here, the court's explanation at
sentencing came too late to satisfy the court's obligations.
While the content of the court's advisement was correct, its
timing deprived defendant of the right to know and consider all
the terms of the plea bargain prior to his decision to plead
guilty.
          Notably, the Appellate Division, Second Department, in
a recent line of cases has held invalid waivers made during this
same type of sentencing proceeding (People v Gil, 109 AD3d 484,
484 [2d Dept 2013] [court did not explain the right to appeal
"until the date the defendant was sentenced, more than a month
after the defendant pleaded guilty, and only after the sentence
was actually pronounced"]; People v Finnegan, 112 AD3d 847 [2d
Dept 2013] [same]; see also People v Ingram, 118 AD3d 722 [2d
Dept 2014] [the People conceded that the defendant's waiver of
right to appeal was invalid], citing Finnegan, 112 AD3d 847, Gil,


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109 AD3d 484; People v Crosby, 131 AD3d 1179 [2d Dept 2015]
[waiver invalid, and reviewed, on the merits, defendant's
excessive sentence claim], citing Finnegan, 112 AD3d 847, Gil,
109 AD3d 484; People v Dunbar, 134 AD3d 851 [2d Dept 2015]
[waiver invalid], citing Finnegan, 112 AD3d 847, Gil, 109 AD3d
484).   That conclusion is a correct application of our case law.
However, to the extent the Appellate Division's determination
that defendant's waiver was valid may be based, not on the record
made at the sentencing hearing, but on the plea proceeding
colloquy, the court's conclusion was incorrect for the reasons I
have stated.
             Although the waiver was invalid, defendant's sole claim
raised on appeal to this Court is, for the reasons stated by the
majority, unpreserved.    Therefore, the Appellate Division should
be affirmed.
*   *    *    *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed, in a memorandum. Judges Pigott, Abdus-Salaam,
Stein and Fahey concur. Judge Rivera concurs in result in a
separate concurring opinion. Chief Judge DiFiore and Judge
Garcia took no part.

Decided February 23, 2016




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