PEOPLE,& C., RESPONDENT, v. MICHAEL CALVI, APPELLANT.
89 N.Y.2d 868, 675 N.E.2d 843, 653 N.Y.S.2d 89 (1996)
December 18, 1996
2 No. 258 (1996 NY Int. 241)
Decided December 18, 1996
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Carlo Joseph Calvi, for Appellant.
F. Josiah Leicht, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be modified and the case
remitted to the Appellate Division for further proceedings in
accordance with this memorandum and, as so modified, affirmed.
Defendant was convicted, following a nonjury trial, of multiple counts
of bribe receiving, criminal possession of a forged instrument, grand
larceny and receiving unlawful gratuities in connection with a
municipal corruption scandal, investigation and series of prosecutions
in Yonkers, New York. At a pre-sentencing hearing, the Trial Judge, on
the record, urged the defendant to cooperate with the New York State
Organized Crime Task Force. Defendant began to do so in accordance
with a written and signed cooperation agreement, entered into in the
presence of and with the advice of his lawyers. Defendant agreed to
testify against other targets in exchange for prosecutors bringing his
cooperation to the attention of the trial court.
The agreement also contained a provision -- the sole reviewable issue
on this appeal -- by which defendant purported to waive the right to
appeal his conviction. No mention of the cooperation agreement or the
waiver provision was made at the sentencing hearing, nor does it
appear that it was judicially reviewed at all as part of the record.
At that time, however, the prosecution did describe defendant's
cooperation as "helpful, but not substantial." Though consecutive
sentences were authorized, the trial court ultimately sentenced
defendant to indeterminate terms of imprisonment, concurrent to
Federal sentences. Defendant appealed to the Appellate Division. That
court modified defendant's sentence, but otherwise enforced the waiver
of the right to appeal. A Judge of this Court granted leave to appeal,
and we now modify by remitting for a determination of the validity of
defendant's waiver.
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
Carlo Joseph Calvi, for Appellant.
F. Josiah Leicht, for Respondent.
The order of the Appellate Division should be modified and the case remitted to the Appellate
Defendant was convicted, following a nonjury trial, of multiple counts of bribe receiving,
At a pre-sentencing hearing, the Trial Judge, on the record, urged the defendant to cooperate
Defendant began to do so in accordance with a written and signed cooperation agreement,
The agreement also contained a provision -- the sole reviewable issue on this appeal -- by
No mention of the cooperation agreement or the waiver provision was made at the sentencing
Though consecutive sentences were authorized, the trial court ultimately sentenced defendant
This Court has approved the effectiveness of waivers of the right to appeal, so long as they
In this case, however, because the waiver was never explicitly reviewed or considered by the
In accepting a defendant's waiver of the right to appeal, the trial court must at least
"While there is no requirement that the trial court engage in any particular litany" (People
trial courts retain some discretion in satisfying the record requirements to protect
Something, however, must be placed on the record, and nothing was done here, including no
We are constrained to remit this case to the Appellate Division with directions to remand to
Order modified by remitting to the Appellate Division, Second Department, for further
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