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Criteria for Valid Waiver of Appeal Explained

In finding the defendant did not make a valid waiver of his right to appeal because the colloquy was inadequate, in spite of the defendant’s signing a written waiver, the First Department wrote:

We note that litigation over the validity of appeal waivers, which arises regularly from many courts, can best be avoided if trial judges separately llocate defendants on the waiver of the right to appeal … . We again remind the courts that the better practice is to secure a written waiver, along with a thorough colloquy to ensure the defendant’s understanding of its contents … . It would be best if the court made clear that this is a separate and important right being waived, and that by signing the waiver, the plea and sentence are final, and the defendant agrees to accept the sentence imposed. The court cannot rely solely on defense counsel to explain the significance of the written waiver. People v Oquendo, 2013 NY Slip Op 02320, 9617, 1090/09, 1st Dept 4-4-13

 

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