You are here: / / SUPREME COURT MISCHARACTERIZED THE SCOPE OF THE WAIVER OF APPEAL BY NOT...
,

SUPREME COURT MISCHARACTERIZED THE SCOPE OF THE WAIVER OF APPEAL BY NOT CLARIFYING THAT CERTAIN FUNDAMENTAL ISSUES REMAIN APPEALABLE DESPITE THE WAIVER; WAIVER INVALID (SECOND DEPT).

The Second Department determined Supreme Court mischaracterized the scope of the waiver of appeal rendering the waiver invalid:

… [T]he court mischaracterized the effect of the waiver on the defendant’s right to appeal. In this regard, the court, after describing the function of an appellate court, concluded its explanation of the waiver by stating: “What all this means, though, is that this plea and the sentence I am going to impose are final and that higher court will not have a chance to review it.”

“The improper description of the scope of the appellate rights relinquished by the waiver is refuted by . . . precedent, whereby a defendant retains the right to appellate review of very selective fundamental issues, including the voluntariness of the plea and appeal waiver, legality of the sentence and the jurisdiction of the court” … . Accordingly, it was incorrect for the Supreme Court to convey to the defendant that an appellate court would have no authority to review the plea or the sentence under any circumstances.

Furthermore, the record in this case does not include any “clarifying language” indicating that “appellate review remained available for certain issues” or that “the right to take an appeal was retained” … . Although the People cite to a written waiver that was apparently signed by the defendant, the Supreme Court “failed to confirm that [the defendant] understood the contents of the written waiver[ ]” … . In any event, the written waiver does not indicate that appellate review remained for certain limited issues, but rather, merely stated that “[the] sentence and conviction will be final” … . People v Christopher B., 2020 NY Slip Op 03242, Second Dept 6-10-20

 

You might also like
IN THIS FORECLOSURE ACTION, PLAINTIFF’S COUNSEL’S AFFIDAVIT, WHICH WAS BASED SOLELY UPON READING THE COMPLAINT, DID NOT DEMONSTRATE DEFENDANT’S DEFAULT (SECOND DEPT).
THE JUDGE’S LAW CLERK, A FORMER ASS’T DA, DISCUSSED DEFENDANT’S SENTENCING WITH THE JUDGE; THE JUDGE SHOULD HAVE RECUSED HIMSELF FROM THE SENTENCING, SENTENCE VACATED (SECOND DEPT).
THE FORECLOSURE ACTION WAS AUTOMATICALLY STAYED WHEN DEFENDANT’S ATTORNEY WAS SUSPENDED; EVEN THOUGH THE ORDER GRANTING THE ATTORNEY’S MOTION TO WITHDRAW DIRECTED DEFENDANT TO RETAIN AN ATTORNEY OR GO AHEAD PRO SE, DEFENDANT WAS NEVER SERVED WITH A NOTICE TO APPOINT AN ATTORNEY REQUIRED BY CPLR 321; THEREFORE THE STAY WAS NOT LIFTED AND DEFENDANT’S MOTION TO VACATE THE SUMMARY JUDGMENT ORDER SHOULD HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT WAS NOT AN ALTER EGO OF PLAINTIFF’S EMPLOYER, PLAINTIFF WAS NOT DEFENDANT’S SPECIAL EMPLOYEE, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION BASED UPON THE ALLEGATION THE LADDER MOVED FOR NO APPARENT REASON, NOTWITHSTANDING EVIDENCE PLAINTIFF MAY HAVE SAID HE PLACED THE LADDER ON A DROP CLOTH (SECOND DEPT).
FORMER LAW FIRM PARTNER WAS ENTITLED TO AN ACCOUNTING; IN DETERMINING THE BUYOUT PRICE UPON THE PARTNER’S WITHDRAWAL FROM THE PARTNERSHIP, THE TERMS OF THE PARTNERSHIP AGREEMENT, RATHER THAN PARTNERSHIP LAW, CONTROL (SECOND DEPT).
DECEDENT’S CONSENT TO SURGERY SUBMITTED IN SUPPORT OF SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION DID NOT VIOLATE THE DEAD MAN’S STATUTE, THE CONSENT WAS AUTHENTICATED BY THE MEDICAL RECORDS (SECOND DEPT).
QUESTION OF FACT WHETHER FIDUCIARY TOLLING RULE EXTENDED STATUTE OF LIMITATIONS; ISSUE CAN BE ADDRESSED ON APPEAL EVEN THOUGH NOT RAISED BELOW.
Criteria for Vacation of a Stipulation of Settlement Not Met

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN... DEFENDANT’S MOTION TO DISMISS IN THE INTEREST OF JUSTICE SHOULD NOT HAVE...