THE WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE STATED THE WAIVER WAS AN ABSOLUTE BAR TO AN APPEAL (FOURTH DEPT).

The Fourth Department determined defendant’s waiver of appeal was invalid:

… [D]efendant’s waiver of the right to appeal is invalid because County Court’s oral colloquy mischaracterized it as an “absolute bar” to the taking of an appeal … . …

Furthermore, the written waiver executed by defendant did not contain any clarifying language to correct deficiencies in the oral colloquy. Rather, it perpetuated the oral colloquy’s mischaracterization of the waiver of the right to appeal as an absolute bar to the taking of a first-tier direct appeal and even stated that the rights defendant was waiving included the “right to have an attorney appointed” if she could not afford one and the “right to submit a brief and argue before an appellate court issues relating to [her] sentence and conviction” … . People v Shea’Honnie D., 2023 NY Slip Op 03137, Fourth Dept 6-9-23

Practice Point: A waiver of appeal is not absolute and the judge’s characterizing a waiver as absolute invalidates it.