# People v. Bradshaw > New York Court of Appeals · December 13, 2011 · 18 N.Y.3d 257 URL: https://www.frixlaw.com/law-library/cases/5487109 ## Case - **Full name:** The People of the State of New York v. Jay Jomar Bradshaw - **Court:** New York Court of Appeals - **Decided:** December 13, 2011 - **Citations:** 18 N.Y.3d 257; 961 N.E.2d 645 - **Precedential status:** Published - **Opinion:** Dissent by Read - **Judges:** Cipabick, Read - **Cited by:** 1,321 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5487109 ## How later opinions describe it (automated extraction) - finding inadequate appeal waiver where the defendant never orally confirmed that he “grasped the concept of the appeal waiver and the nature of the right he was forgoing” ## Opinion text Read, J. (dissenting). Today’s decision brings to mind the New York State Lottery’s slogan: “Hey, you never know.” My colleagues in the majority, unlike Lottery officials, are not trying to encourage participation in a game of chance, but our trial judges might well be forgiven for concluding that the Court has now transformed the taking of an appeal waiver into something equally uncertain of outcome. This is perhaps best illustrated by comparing the facts and proceedings underlying our decision in People v Ramos ( 7 NY3d 737 [2006]), handed down only five years ago, with what happened here. Although the differences between the two cases are negligible to nonexistent, a unanimous court upheld Ramos’s appeal waiver, whereas a divided court has now invalidated defendant Jay Jomar Bradshaw’s. To begin with, the majority emphasizes the 23-year-old Bradshaw’s psychiatric history and status as a first-time felony offender at the time of his plea, although he had been convicted of a misdemeanor and on another occasion adjudicated a youthful offender (majority op at 259-260, 265-266). So, too, in Ramos , where the 30-year-old defendant had scant (if any) 1 experience with the criminal justice system before July 2001, when he was taken into custody in connection with attacks on six women between October 1999 and June 2001. At the time, Ramos suffered from long-standing psychiatric problems, including a history of manic depression and seizures. During the year and a half after his arrest, he was confined in various psychiatric facilities; he twice attempted suicide while awaiting disposition of his case. By October 2001, Ramos had undergone three competency examinations pursuant to article 730 of the Criminal Procedure Law, resulting in a 2-1 split of opinion. His case was repeatedly adjourned for the purpose of determining his competency. In late 2002, two reviewing physicians found Ramos fit to *269 stand trial. Still, one of these doctors was forced to terminate the examination when Ramos started scratching his face in a self-destructive manner. The physicians diagnosed Ramos as suffering from a probable grand mal seizure disorder; an adjustment disorder with mixed depression and anxiety; and borderline intellectual functioning. In January 2003, defense counsel and the prosecutor agreed, and the court confirmed, that Ramos was nonetheless fit to proceed within the meaning of article 730. The plea hearing was held in May 2003—mere days after Ramos’s second suicide attempt. The judge asked Ramos if he knew what medication he was taking. Ramos replied, “I have no idea. Right now I’m on Dilantin.” When the judge queried if the medication made it difficult for him to “understand your surroundings,” Ramos replied “I don’t know, sir.” In response to the judge’s follow-up questions, Ramos stated that he knew he was in the courthouse, his lawyer was standing beside him and a judge was questioning him. The judge then asked, “Do you understand what we’re doing here today?” and Ramos replied, “Not fully, but just . . . .” The judge interjected “What is it that you don’t understand?” Before Ramos could respond, though, the judge elicited from him that his mother was in the courtroom; that he had discussed with his mother that he was going to have “either hearings and/or trial or to enter a plea on a negotiated plea for an agreed upon sentence”; that he had enjoyed “a full, fair and complete opportunity” to discuss his case with his attorney and his mother; and that he was satisfied with his attorney. The judge next asked Ramos if he understood that he could go to trial, and that by deciding not to do so, he was giving up certain constitutional rights, including the right to have his case tried by a jury; to confront the witnesses against him; to remain silent; and to make the District Attorney persuade a jury of his guilt beyond a reasonable doubt. Ramos answered simply “Yes,” each time. The judge explained the counts to which Ramos was pleading guilty and the promised sentence, and told him that his attorney was withdrawing any and all motions in the case. Again, Ramos responded “Yes” when asked if he understood what the judge was saying. He answered “No,” only when questioned about whether any promises other than the bargained-for sentence had been made to induce him to plead guilty. The entire colloquy about Ramos’s waiver of his right to appeal consisted of the following exchange: *270 “the court: You also understand that by entering this plea of guilty you’re giving up any and all rights to appeal this conviction and sentence; in other words, this is now final. Once you agree to do this, not only will there not be any trial but there won’t be any appeals; do you understand that this is final? “the defendant: Yes.” Ramos then withdrew his plea of not guilty, and admitted facts sufficient to establish that he was guilty of attempted assault in the first degree, first-degree attempted rape (two counts), first-degree rape (two counts) and first-degree robbery. The judge accepted Ramos’s plea, which was made in exchange for the promise of a prison sentence not to exceed 35 years. Although not mentioned at all during the plea proceeding, Ramos at some point signed a written waiver of his right to appeal. We know this happened because the written waiver was included in Supreme Court’s file for the case. In signing the written waiver, Ramos stated as follows: “I hereby waive my right to appeal. I execute this waiver after being advised by the court and my attorney of the nature of the rights I am giving up. I have been advised of my right to take an appeal (CPL 450.10), to prosecute the appeal as a poor person and to have an attorney assigned in the event that I am indigent, and to submit a brief and/or argue before an appellate court on any issues relating to my conviction and sentence. “I make this waiver voluntarily, knowingly and of my own free will.” Ramos’s attorney signed another section of the written waiver, representing that “prior to the signing of the foregoing waiver, the above-named defendant was fully advised of the rights of a convicted person to take an appeal under the laws of the State of [N]ew York. “I further represent that, in my professional opinion, the above waiver by the defendant of the right to appeal was voluntarily and knowingly made and recommend to the Court that the waiver be approved.” The judge did not sign the final part of the written waiver, *271 which states that the court was of the “opinion that the defendant has knowingly and freely waived the right to appeal,” and that the waiver was approved. When Ramos appeared for sentencing on June 5, 2003, he handed the court a pro se motion to withdraw his guilty plea based on a claim of mental incompetency. The judge noted that “[i]n reviewing the psychiatric reports, it is clear that there are some issues regarding [Ramos’s] full function and he certainly suffers . . . from grand mal epilepsy,” but denied the motion. The court cited the medical finding that Ramos was competent to stand trial; the extensive plea negotiations; Ramos’s indication at the time of the plea that he understood the nature of the proceedings; and his “full allocution, which was both consistent and coherent.” The judge sentenced Ramos to determinate prison terms aggregating 35 years, as bargained for. The Appellate Division subsequently ruled that Ramos’s waiver of the right to appeal was valid (People v Ramos, 21 AD3d 1125 [2d Dept 2005]). On appeal to us, Ramos argued that his waiver was not knowing, intelligent and voluntary because the judge presented the right to appeal as on a par with trial rights automatically forfeited by entry of a guilty plea, and was insufficiently “mindful of [Ramos’s] intellectual and psychiatric deficits” when dealing with him. With respect to the first point, Ramos relied on our decision in People v Billingslea ( 6 NY3d 248, 256 [2006]), where we stated that “[w]hen a tried court characterizes an appeal as one of the many rights automatically extinguished upon entry of a guilty plea, a reviewing court cannot be certain that the defendant comprehended the nature of the waiver of appellate rights. The 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, for example.” With respect to the second point, Ramos cited People v Seaberg ( 74 NY2d 1, 11 [1989]) for the proposition that the trial judge must determine whether an appeal waiver was knowing and intelligent by considering, among other factors, the accused’s “age, experience and background.” We held that Ramos’s waiver of the right to appeal was valid because *272 “[e]ven if there were any ambiguity in the sentencing court’s colloquy, [Ramos] executed a detailed written waiver, distinguishing this case from People v Billingslea, in which the sentencing court’s colloquy was accompanied by nothing other than defendant’s one-word response to the question whether she understood the conditions of her plea” ( 7 NY3d 737 , 738 [2006] [internal quotation marks and citation omitted]). Critically, we noted that Ramos’s “written waiver stated that [he] had the right to appeal, explained the appellate process and confirmed that defense counsel fully advised him of the right to take an appeal under the laws of the State of New York”; and that “[t]he record therefore establishes that [Ramos] knowingly, intelligently and voluntarily waived his right to appeal” (id.). Here, unlike the situation in Ramos, the judge twice informed Bradshaw that he was giving up his appeal rights, and did so in a way that did not risk conflating the right to appeal with those rights automatically forfeited by a guilty plea. The first exchange follows: “the court: Let me just put the whole plea on the record. You will be pleading guilty to rape in the first degree, with a promised sentence of nine years, to run concurrent with whatever you get in Queens and the Bronx.[ 2 ] There’s a period of something called post release supervision that follows it. And there are a couple of fines, which I do not have the authority to waive, of $270, but that will come out of inmate funds. “There’s a waiver of right to appeal. What that means, the conviction here is final, that there is not a higher court you can take it to. Do you understand that? “the defendant: The waiver—I mean the money fee, is this the same fee that— “the court: There will be one in each county. “[defense counsel]: They will take it out of inmate funds. *273 “the court: Do you understand that? “the defendant: Yes.” This exchange indicates that Bradshaw certainly heard what the judge had to say about both the waiver of his right to appeal and fees, but was only interested in following up about the fees. The judge’s second “Do you understand that?” and Bradshaw’s affirmative response might arguably refer to the judge’s statement about the appeal waiver or the fees (or both), or only to the judge’s and defense counsel’s answer to Bradshaw’s immediately preceding question about the fees. The second exchange ensued later in the plea proceeding: “the court: Now, other than what I have already promised you, which is the nine years, with my recommendation of concurrent sentencing,[ 3 ] five years post release supervision, waiver of right to appeal, and $270 in fees and fines, has anybody else made any other promise to you in order to get you to plead guilty? “the defendant: No.” Again, Bradshaw, who frequently asked questions of the judge during the plea colloquy, said not a word about the waiver of appeal. He pleaded guilty to first-degree rape. Finally, at the very end of the plea proceeding, the judge asked if the written waiver of appeal had been signed. Defense counsel responded, “Handing up to the Court. . . the waiver of right to appeal executed by Mr. Bradshaw and witnessed by myself as his attorney.” The judge also signed the written waiver, which was identical to the one in Ramos. At sentencing, Bradshaw made a pro se motion to withdraw his plea. He argued that his attorney “took advance [sic] of [his] mental disadvantage to fully understand” by “persuading]” and “coercing]” him into taking a plea, and “misinforming]” him about the “actual plea agreement” by inaccurately representing that he would receive a therapeutic program. The judge denied the motion and imposed the agreed-upon sentence of nine years in prison and five years of postrelease supervision. So why was the appeal waiver valid in Ramos but not in this case? Ramos was at least as fragile mentally as Bradshaw, who participated far more actively in the plea proceeding. And in *274 Billingslea , we explained that although the “better practice” would be for the judge to explain to a defendant during the plea colloquy that “though he ordinarily retains the right to an appeal even after pleading guilty, ... he was being offered a particular plea by the prosecution on the condition that he give up that right,” it was “even better to secure a written waiver” to the same effect ( 6 NY3d at 257 [emphasis added]). Further, in Ramos, we held that such a written waiver—and, as already mentioned, the written waivers in Ramos and in this case are identical—cured “any ambiguity in the sentencing court’s colloquy” about whether the “[defendant's waiver of his right to appeal was effective” ( 7 NY3d at 738 ). Yet here, the majority completely discounts the written waiver, “render[ing it] entirely superfluous” in the words of the dissenters at the Appellate Division ( 76 AD3d 566 , 579 [2d Dept 2010, Fisher, J., dissenting]). Put even more bluntly, we are evidently to assume that Bradshaw did not know what he was signing, and that defense counsel’s and the court’s representations are not to be believed. I respectfully dissent. Chief Judge Lifpman and Judges Pigott and Jones concur with Judge Ciparick; Judge Read dissents in a separate opinion in which Judges Graffeo and Smith concur. Order affirmed. . His attorney, in her brief, said that Ramos had never before been in trouble with the law. The District Attorney did not dispute this; however, in the transcript of the plea proceeding the District Attorney stated that Ramos had a prior felony arrest, but that the grand jury did not return an indictment. . As the majority opinion notes, Bradshaw had additional felony cases pending against him in those boroughs (majority op at 260, 260 n 2). . If convicted after trial, Bradshaw might have been sentenced to 25 years in prison. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5487109. Public record. Not legal advice.