Inadequate Waivers of Appeal Addressed In Depth—Detailed Advice to Judges Re: How to Obtain a Valid Waiver—Written Waiver Found Inadequate Here Because the Record Was Silent About Defendant’s Understanding Of It

The Second Department, in an important full-fledged opinion by Justice Skelos, broadly addressed the problem of inadequate waivers of appeal, giving specific advice to judges about how to obtain a valid waiver.  In the case before the court, the defendant had signed a written waiver.  But because the record was otherwise silent about the defendant’s understanding of the waiver, it was deemed invalid.  The opinion is too comprehensive and detailed to be fairly summarized here:

Generally, … a thorough explanation [of the waiver by the court]should include an advisement that, while a defendant ordinarily retains the right to appeal even after he or she pleads guilty, the defendant is being asked, as a condition of the plea agreement, to waive that right. Ideally, a defendant should then receive an explanation of the nature of the right to appeal, which essentially advises that this right entails the opportunity to argue, before a higher court, any issues pertaining to the defendant’s conviction and sentence and to have that higher court decide whether the conviction or sentence should be set aside based upon any of those issues. The defendant should also be told that appellate counsel will be appointed in the event that he or she were indigent. The trial courts should then explain the consequences of waiving the right to appeal, i.e., that the conviction and sentence will not receive any further review, and shall be final. The trial courts must be sure to obtain, on the record, an affirmative response from the defendant that he or she understands the rights as explained, that the defendant is giving up those rights, and that the defendant is doing so voluntarily after discussing same with counsel. The mere explanation of the right to appeal and the consequences of a waiver without an affirmative response from the defendant is insufficient to effect a valid waiver … . We are mindful of the time demands on our trial courts, which are burdened with heavy calendars, and recognize that such a thorough colloquy is not necessary in every case to secure a valid waiver of the right to appeal. Nevertheless, the benefit to be derived therefrom by defendants, who are asked to waive a fundamental right, by the People, who have bargained for a waiver of the defendant’s right to appeal, and by appellate courts faced with determining the validity of such waivers, outweighs any burden imposed on the trial courts by a slight increase in the length of the plea proceedings.  People v Brown, 2014 NY Slip Op 06101, 2nd Dept 9-10-14