People v. Sanders , 976 N.Y.S.2d 205 ( 2013 )

Appeal by the defendant from a judgment of the County Court, Westchester County (Hubert, J.), rendered May 27, 2010, convicting him of manslaughter in the first degree and gang assault in the first degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant, while acting in concert with several others, stabbed the 16-year-old victim to death. He was charged, inter alia, with murder in the second degree. Following the partial denial of his motion to suppress certain inculpatory statements he made to law enforcement officials, the defendant decided to plead guilty to manslaughter in the first degree and gang assault in the first degree in exchange for concurrent terms of 20 years of imprisonment. During the plea colloquy, the prosecutor asked the defendant if he understood that, as a condition of this plea, he was waiving the right to appeal his conviction and sentence to “the Appellate Division Second Department,” if he had discussed the waiver with his attorney, and if he was willing, in consideration of this plea, to waive that right voluntarily. The defendant answered in the affirmative to all three questions. Thereafter, the defendant was sentenced in accordance with the terms of his plea agreement.

On appeal, the defendant contends that the County Court erred in denying portions of his suppression motion. However, the defendant is precluded from raising that contention on appeal by virtue of his valid appeal waiver.

In order to be enforceable, a waiver of the right to appeal must be made knowingly, voluntarily and intelligently (see People v Lopez, 6 NY3d 248, 255 [2006]; People v Seaberg, 74 NY2d 1, 10 [1989]). In determining whether a waiver is valid, all the relevant facts and circumstances surrounding the waiver, including the nature and terms of the agreement, as well as the age, experience, and background of the accused, must be considered (see People v Bradshaw, 18 NY3d 257, 264 [2011]; People v Seaberg, 74 NY2d at 11). Because a trial court must take into account all the relevant facts and circumstances of the myriad defendants who appear before it and the permutations of various plea deals, it need not engage in any particular litany or catechism in satisfying itself that a knowing, voluntary, and intelligent appeal waiver has been entered (see People v Bradshaw, 18 NY3d at 264). The trial court, with the benefit of having the opportunity to observe the defendant before it, is in the best position to make this determination in the first instance (see id.; People v Callahan, 80 NY2d 273, 280 [1992]).

ln People v Lopez (6 NY3d 248, 254 [2006]), as part of his plea colloquy, and following an explanation of the trial rights forfeited by virtue of a guilty plea, the court said to the defendant, “ ‘You also understand you’re giving up your right to appeal, that is, to take to a higher court than this one any of the legal issues connected with this case? You understand that?’ ” The defendant answered, “ ‘Yes.’ ” The defendant did not sign a written appeal waiver. The Court of Appeals held that the waiver was effective, noting that the nature of the right being waived was adequately described (see id. at 257).

Similarly, in People v Torres (236 AD2d 642 [1997]), the court asked the defendant if his attorney had explained to him that the waiver of appeal meant he could not take the case to a higher court, and the defendant replied that counsel had, and that he had consented to it. This colloquy, this Court held, while “terse,” was “enough” to conclude that the waiver was made knowingly, voluntarily, and intelligently (id.).

Consistent with our precedent and as guided by Lopez, this same colloquy, advising a defendant that he or she has the right to appeal his or her conviction and sentence to the Appellate Division, Second Department, has been repeatedly upheld by this Court as resulting in a valid waiver (see People v Arias, 100 AD3d 914 [2012]; People v Gonzalez, 93 AD3d 679 [2012]; People v Brown, 78 AD3d 723 [2010]; People v Ramos, 77 AD3d 773 [2010]; People v Buniek, 52 AD3d 621 [2008]; People v Reina, 35 AD3d 509 [2006]; People v Rosas, 34 AD3d 605 [2006]; People v Sherrill, 27 AD3d 588 [2006]; People v Carden, 27 AD3d 573 [2006]; People v Eaton, 14 AD3d 577 [2005]; People v Williams, 13 AD3d 661 [2004]; People v Mercer, 204 AD2d 741 [1994]). Although the dissent concludes that these cases are of “limited precedential value” because they do not “contain any description of the plea colloquy at issue,” it is well settled that a court may take judicial notice of its own records in prior cases (see Matter of Allen v Strough, 301 AD2d 11, 18 [2002]; New York State Dam Ltd. Partnership v Niagara Mohawk Power Corp., 222 AD2d 792, 794 n [1995]; Sam & Mary Hous. Corp. v Jo/Sal Mkt.Corp., 100 AD2d 901, 902 [1984]; People v Singleton, 36 AD2d 725 [1971]).

While the words “higher court” were not used in this instance, as they were in Lopez and Torres, reference was made to the Appellate Division, Second Department, which is a higher court, and the one to which the defendant would have had the right to appeal directly had he not waived his right to appeal. There is no distinction between the two references. Nevertheless, the dissent posits that a nonlawyer would not understand what the right to appeal to the Appellate Division would mean. But, the defendant in this case was 27 years old and “no stranger to the criminal justice system” (People v Korona, 197 AD2d 788, 790 [1993]; People v Graham, 177 AD2d 505, 506 [1991]), having multiple prior convictions, including a federal conviction and a New York state felony conviction, the latter of which resulted in his being adjudicated a second violent felony offender. The age, experience, and background of the defendant all support the County Court’s determination that he understood his appellate rights (see People v Arias, 100 AD3d 914 [2012]). Contrary to the dissent’s suggestion, our conclusion that the defendant understood the nature of the right to appeal, in part, based on his background, is not speculative. The Court of Appeals has explicitly permitted the consideration of a defendant’s background (see People v Bradshaw, 18 NY3d at 260; People v Seaberg, 74 NY2d at 11), and where, as here, the defendant is 27 years old and has multiple prior convictions, a court may fairly infer that he understands what it means to have the right to appeal to the Appellate Division, Second Department (see People v Griffin, 195 AD2d 766, 767 [1993]). Notably, in this case, the defendant exercised that right by filing, pro se, with this Court, a notice of appeal and requesting the appointment of counsel.

Accordingly, since the defendant validly waived his right to appeal, appellate review of the denial of his suppression motion is precluded, and the judgment must be affirmed. Rivera, J.E, Chambers and Lott, JJ., concur.