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​ A WAIVER OF APPEAL NOT MENTIONED UNTIL SENTENCING IN INVALID; MATTER REMITTED FOR A DECISION ON DEFENDANT’S MOTION TO REDACT STATEMENTS MADE WITHOUT COUNSEL FROM THE PREPLEA INVESTIGATION REPORT (FOURTH DEPT).

The Fourth Department, remitting the matter, determined (1) the waiver of the right to appeal was invalid because the waiver was not mentioned until sentencing, after defendant pled guilty, and (2) the judge never decided defendant’s request to have certain statements, made without counsel, redacted from the preplea investigation report:

A waiver of the right to appeal is not effective where, as here, it is not mentioned until sentencing, after defendant pleaded guilty … . …

Defendant … contends that Supreme Court erred in failing to redact from the preplea investigation report statements that defendant made during the preplea investigation interview, because those statements were made without the presence of counsel. … [D]efendant preserved the issue for our review by moving to redact the statements from the preplea investigation report … . The court stated that it was reserving decision, but there is no indication in the record that the court ever issued a decision. It is well settled that a court’s failure to rule on a motion cannot be deemed a denial thereof . We therefore hold the case, reserve decision, and remit the matter to Supreme Court to determine defendant’s motion.  People v Wallace, 2023 NY Slip Op 01616, Fourth Dept 3-24-23

Practice Point: A waiver of appeal not mentioned until sentencing is invalid.

Practice Point: When a judge fails to decide a motion, here a motion to redact statements from the preplea investigation report, the appellate court cannot consider the motion to have been denied and must remit for a decision.

 

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