Although the Right to Appeal Could Have Been Defined More Fully, Defendant’s Waiver of Appeal In Response to a Colloquy Conducted by the Prosecutor Deemed Sufficient

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, determined defendant’s waiver of appeal was valid, noting the nature of the right to appeal could have been defined more fully.  “Regarding the waiver of the right to appeal, the following exchange … took place between the prosecutor and defendant: ‘Q Do you understand that as a condition of this plea you are waiving the right to appeal your conviction and sentence to the Appellate Division [2nd] Department? A Yes. Q Have you discussed this waiver of the right to appeal with your attorney? A Yes. Q In consideration of this negotiated plea[,] do you now voluntarily waive your right to appeal your conviction and sentence under this indictment? A Yes.’ ” The Court of Appeals noted “County Court adequately described the right to appeal without lumping it into the panoply of rights normally forfeited upon a guilty plea.” [The dissent pointed out that the responsibility for the colloquy re: the waiver of appeal was delegated to the prosecutor here:]

….[W]e conclude that the record before us sufficiently demonstrates that defendant knowingly and intelligently waived his right to appeal. There is no meaningful distinction between the plea colloquy here and the colloquy upheld in Nicholson, in which defendant acknowledged his understanding that he was “giving up [his] right to appeal, that is, to take to a higher court than this one any of the legal issues connected with this case” (Nicholson, 6 NY3d at 254). As in Nicholson, the plea colloquy here was sufficient because County Court adequately described the right to appeal without lumping it into the panoply of rights normally forfeited upon a guilty plea. In fact, the People went even further in this case and obtained defendant’s confirmation that he had discussed the waiver of the right to appeal with his attorney and that he was waiving such right in consideration of his negotiated plea, as well as counsel’s confirmation that all motions pending or decided were being withdrawn. Thus, while the better practice would have been to define the nature of the right to appeal more fully — as the court did in Nicholson — the Appellate Division correctly determined that no further elaboration was necessary on the phrase “right to appeal your conviction and sentence to the Appellate Division [2nd] Department” in view of the whole colloquy, particularly given this defendant’s background, including his extensive experience with the criminal justice system and multiple prior guilty pleas that resulted in terms of imprisonment. People v Sanders, 2015 NY Slip Op 04755, CtApp 6-9-15