You are here: / / IN A CLOSE CASE THE SECOND DEPT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT...
,

IN A CLOSE CASE THE SECOND DEPT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL, THE COMPREHENSIVE OPINIONS BY TWO CONCURRING JUSTICES AIM TO INSTRUCT TRIAL JUDGES ON THE REQUIREMENTS FOR A VALID WAIVER (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, with a concurring opinion by Justice Scheinkman (joined by all of the justices), determined that defendant validly waived his right to appeal. The comprehensive opinions aim to instruct trial judges on what is required for a valid waiver:

Although we hold that the defendant validly waived his right to appeal, precluding review of his contention that the sentence imposed was excessive, we take the opportunity to respectfully urge our trial courts to give greater attention to the colloquy used in taking a waiver of the right to appeal. * * *

The defendant answered in the affirmative when the Supreme Court asked, “Do you understand that one of the terms of this plea agreement is that you will not exercise your right to appeal.” The court’s phrasing served to differentiate the rights the defendant gave up by pleading guilty from the right to appeal the defendant gave up as part of this plea agreement. The defendant also answered in the affirmative when the court later asked, “By waiving your right to appeal, you will be foreclosed forever from complaining about any errors that may have occurred in this proceeding. Do you realize that?” This question provided some explanation of the nature of the right to appeal and the consequences of waiving it, and was met with an affirmative response. Additionally, the defendant acknowledged signing the written waiver form, and answered that he discussed it with his attorney before he signed it, that he understood all those discussions, that he was satisfied with those discussions, and that he signed it of his own free will. Granted, whether the appeal waiver is valid in this case presents a very close question given, inter alia, that the on-the-record explanation of the nature of the right to appeal and the consequences of waiving it was terse and included no reference to a higher court or the Appellate Division; the defendant had a limited education, having stopped attending school in the eighth grade; and he had minimal prior experience with the criminal justice system, having been adjudicated a youthful offender but not having been convicted of a felony previously. Nonetheless, the record before us, consisting of the oral colloquy and the detailed written waiver, sufficiently demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal. People v Batista, 2018 NY Slip Op 07445, Second Dept 11-7-18

CRIMINAL LAW (APPEALS, WAIVER, IN A CLOSE CASE THE SECOND DEPARTMENT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL, THE COMPREHENSIVE OPINIONS BY TWO CONCURRING JUSTICES AIM TO INSTRUCT TRIAL JUDGES ON THE REQUIREMENTS FOR A VALID WAIVER (SECOND DEPT))/APPEALS (CRIMINAL LAW, WAIVER, IN A CLOSE CASE THE SECOND DEPARTMENT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL, THE COMPREHENSIVE OPINIONS BY TWO CONCURRING JUSTICES AIM TO INSTRUCT TRIAL JUDGES ON THE REQUIREMENTS FOR A VALID WAIVER (SECOND DEPT))/WAIVER OF APPEAL (CRIMINAL LAW, IN A CLOSE CASE THE SECOND DEPARTMENT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL, THE COMPREHENSIVE OPINIONS BY TWO CONCURRING JUSTICES AIM TO INSTRUCT TRIAL JUDGES ON THE REQUIREMENTS FOR A VALID WAIVER (SECOND DEPT))

You might also like
WHERE ONE OF TWO RELATED FORECLOSURE ACTIONS IS SUBJECT TO A MERITORIOUS MOTION TO DISMISS AS TIME-BARRED, IT IS AN ABUSE OF DISCRETION TO GRANT A MOTION TO CONSOLIDATE THE TIME-BARRED ACTION WITH THE TIMELY ACTION (SECOND DEPT).
Plaintiff’s Failure to Replace Manhole Cover Was Sole Proximate Cause of Injury
THE CAUSES OF ACTION FOR INDEMNITY AND CONTRIBUTION IN THIS SLIP AND FALL CASE DO NOT ACCRUE UNTIL THE UNDERLYING CLAIM IS PAID, WHICH HAS NOT HAPPENED YET; THEREFORE THE STATUTE OF LIMITATIONS ON THOSE CAUSES OF ACTION HAS NOT YET STARTED TO RUN (SECOND DEPT).
THE FOIL REQUEST FOR THE NUMBER AND LOCATION OF LICENSE PLATE READERS (LPR’S) SHOULD HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF BANK DID NOT SEND THE 90-DAY FORECLOSURE NOTICE IN A SEPARATE ENVELOPE AS REQUIRED BY RPAPL 1304; THEREFORE THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​
ALLEGED ZONING VIOLATION DID NOT AUTOMATICALLY WARRANT REMOVAL OF TAX-EXEMPT STATUS; TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.
Question of Fact Whether ¾ Inch Height Differential Was “Trivial”
MOTION TO RENEW PROPERLY USED TO CORRECT DEFECT IN INITIAL PAPERS (DEPOSITION TRANSCRIPTS UNSIGNED), PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT BAR SERVED DRIVER WHEN HE WAS VISIBLY INTOXICATED (DRAM SHOP ACT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

INSUFFICIENT EVIDENCE CONNECTING THE INMATE TO THE DOCUMENTS CONTAINING GANG... DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT...