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THE WAIVER OF APPEAL WAS NOT KNOWINGLY AND VOLUNTARILY EXECUTED; NO MENTION OF THE WAIVER WAS MADE UNTIL AFTER THE GUILTY PLEA AND THE EXPLANATION OF THE RIGHTS AT STAKE WAS INSUFFICIENT (SECOND DEPT).

The Second Department determined the waiver of appeal was invalid because it was first mentioned after the guilty plea and the explanation of the purportedly waived appellate rights was insufficient:

… [T]he appeal waiver was not mentioned by the Supreme Court prior to the defendant’s plea of guilty, but only afterward. Accordingly, “the defendant received no material benefit from his appeal waiver, as the court had already accepted the defendant’s plea and made its sentence promise” … . Under such circumstances and in the absence of a request by the People, “the court’s insistence upon the execution of an appeal waiver was a gratuitous, after-the-fact additional demand asserted after the bargain had already been struck” … . In addition, the court’s colloquy on this issue, conducted after the plea had already been accepted, “mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal” … . Contrary to the People’s contention, “these defects were not cured by the terms of the standard written appeal waiver form, which not only lacked detail and repeated many of the mischaracterizations contained in the court’s colloquy, but further misstated that the defendant was giving up the right to all postconviction relief separate from the direct appeal” … . People v Eduardo S., 2020 NY Slip Op 04873, Second Dept 9-2-20

 

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