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WHERE A TRIAL JUDGE DEMANDS A WAIVER OF APPEAL, THE JUDGE SHOULD PLACE HIS OR HER REASONS ON THE RECORD SO THE DEMAND IS NOT SEEN AS A TOOL FOR AVOIDING APPELLATE REVIEW; THE JUDGE-DEMANDED WAIVER WAS NOT ENFORCED IN THIS CASE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, determined defendant’s waiver of appeal was not enforceable for two reasons: (1) the waiver was demanded by the judge, not the People; and (2) the waiver was demanded after the guilty plea and the sentence promise (therefore defendant did not receive a material benefit from the waiver). The court noted that a waiver demanded by a judge could be seen a tool for avoiding appellate review. Therefore, the Second Department held the judge should put his or her reasons for demanding a waiver on the record. Turning to the merits, the Second Department affirmed the conviction:

We do not foreclose the possibility that there may be circumstances where the trial court has a legitimate interest in conditioning its acceptance of a plea and determination of a sentence upon an appeal waiver that the prosecution has not requested. While the prosecution need not articulate any reason for including a demand for an appeal waiver in its settlement offer, where it is the court that makes the demand, the court should articulate on the record its reasons for doing so in order to dispel any concern that the court’s demand is motivated solely as a means of avoiding appellate review of its decisions. Here, the Supreme Court did not set forth any reason for demanding an appeal waiver, and none is apparent on the record. Accordingly, we will not enforce the defendant’s purported waiver of the right to appeal. People v Sutton, 2020 NY Slip Op 03400, Second Dept 6-17-20

 

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