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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KA 15-01145 

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
-3- 120 

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