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A NUMBER OF GUILTY-PLEA CONVICTIONS REVERSED BECAUSE THE DEFENDANTS WERE TOLD THE WAIVER OF APPEAL WAS AN ABSOLUTE BAR TO APPEAL (CT APP).

The Court of Appeals, over an extensive dissent with respect to one case, reversed a number of guilty-plea convictions because the judges told the defendants the waiver was an absolute bar to appeal:

The waivers of the right to appeal were invalid and unenforceable pursuant to our analysis in People v Thomas (34 NY3d 545 [2019]). It is well-settled that “a waiver of the right to appeal is not an absolute bar to the taking of a first-tier direct appeal” … . Nonetheless, in each case, among other infirmities, the rights encompassed by an appeal waiver were mischaracterized during the oral colloquy and in written forms executed by defendants, which indicated the waiver was an absolute bar to direct appeal, failed to signal that any issues survived the waiver and, in the Queens and Orleans Counties cases, advised that the waiver encompassed “collateral relief on certain nonwaivable issues in both state and federal courts” … . Viewing these deficiencies in the context of the record in each case and considering the totality of the circumstances, including in several cases defendants’ significant mental health issues … , we cannot say that “defendants comprehended the nature [and consequences] of the waiver of appellate rights” … . People v Bisono, 2020 NY Slip Op 07484, CtApp 12-15-20

 

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