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FAILURE TO CLARIFY WHETHER APPEAL WAIVER WAS PART OF THE PLEA AGREEMENT RENDERED THE WAIVER INVALID.

The Third Department determined defendant’s waiver of appeal was invalid because it was not made clear whether the waiver was part of the plea agreement. The court further determined that the sentence for non-violent offenses committed by the 18-year-old defendant was harsh and excessive. With respect to the invalid waiver of appeal, the court wrote:

Defendant was free to waive his right to appeal as an adjunct to the plea agreement, so long as he made a voluntary, knowing and intelligent decision to do so … . It was accordingly incumbent upon County Court to verify, among other things, that defendant understood he was “intentionally relinquish[ing] or abandon[ing] a known right that would otherwise survive a guilty plea” as a component of the plea agreement … . Defendant expressed his willingness to waive his right to appeal during the plea colloquy, but the record is devoid of any indication that an appeal waiver was actually a component of the plea agreement. An appeal waiver was not mentioned when the terms of the plea agreement were recited and, indeed, the People stated that they did not know if defendant was executing an appeal waiver given the absence of any sentencing commitment. Defense counsel then gratuitously offered to have defendant waive his right to appeal in the spirit of “mak[ing] it as easy on everyone as possible.” As a result of these statements, County Court was obliged to determine whether an appeal waiver was required as a “detail[] of the plea bargain” and, if not, whether defendant understood that he did not have to execute one …. . County Court did neither and, given the absence of proof that defendant waived his right to appeal in return for any consideration, we find that waiver to be invalid … . People v Justiniano, 2015 NY Slip Op 08875, 3rd Dept 12-3-15

CRIMINAL LAW (WAIVER OF APPEAL INVALID)/APPEALS (WAIVER OF APPEAL INVALID)/CRIMINAL LAW (SENTENCE HARSH AND EXCESSIVE)/SENTENCING (HARSH AND EXCESSIVE)

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