The Court of Appeals, in a concurring opinion by Judge Rivera, explained that an inadequate waiver of appeal at the time of a guilty plea cannot be remedied by an adequate explanation of the waived appellate rights at sentencing:
“It is the trial court’s responsibility ‘in the first instance,’ to determine ‘whether a particular [appellate] waiver satisfies [the] requirements’ ” … . In order for a trial court’s inquiry to be meaningful, by logic and reason, it must be part of the colloquy in which a court engages prior to accepting a defendant’s plea … . It would make little sense, and serve only to encourage the filing of a motion to vacate the plea on the ground that defendant did not appreciate the consequences of the waiver, if a court confirmed, after-the-fact, whether the defendant understood the nature of the rights relinquished. Thus, a court complies with its obligation to ensure that the waiver is knowing, intelligent, and voluntary, when a court adequately explains to defendant the “separate and distinct” right to appeal … , and “at least prior to the completion of the plea proceeding, [the court] assure[s] itself that defendant adequately understood the right that [defendant] was forgoing” … . Here, the court’s explanation at sentencing came too late to satisfy the court’s obligations. While the content of the court’s advisement was correct, its timing deprived defendant of the right to know and consider all the terms of the plea bargain prior to his decision to plead guilty. People v Leach, 2016 NY Slip Op 01253, CtApp 2-23-16
CRIMINAL LAW (AN ADEQUATE WAIVER OF APPEAL AT THE TIME OF SENTENCING DOES NOT REMEDY AN INADEQUATE WAIVER AT THE TIME OF THE PLEA)/APPEALS (CRIMINAL LAW, AN ADEQUATE WAIVER OF APPEAL AT THE TIME OF SENTENCING DOES NOT REMEDY AN INADEQUATE WAIVER AT THE TIME OF THE PLEA)WAIVER OF APPEAL (CRIMINAL LAW, AN ADEQUATE WAIVER OF APPEAL AT THE TIME OF SENTENCING DOES NOT REMEDY AN INADEQUATE WAIVER AT THE TIME OF THE PLEA)