IN A CLOSE CASE THE SECOND DEPT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL, THE COMPREHENSIVE OPINIONS BY TWO CONCURRING JUSTICES AIM TO INSTRUCT TRIAL JUDGES ON THE REQUIREMENTS FOR A VALID WAIVER (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, with a concurring opinion by Justice Scheinkman (joined by all of the justices), determined that defendant validly waived his right to appeal. The comprehensive opinions aim to instruct trial judges on what is required for a valid waiver:

Although we hold that the defendant validly waived his right to appeal, precluding review of his contention that the sentence imposed was excessive, we take the opportunity to respectfully urge our trial courts to give greater attention to the colloquy used in taking a waiver of the right to appeal. * * *

The defendant answered in the affirmative when the Supreme Court asked, “Do you understand that one of the terms of this plea agreement is that you will not exercise your right to appeal.” The court’s phrasing served to differentiate the rights the defendant gave up by pleading guilty from the right to appeal the defendant gave up as part of this plea agreement. The defendant also answered in the affirmative when the court later asked, “By waiving your right to appeal, you will be foreclosed forever from complaining about any errors that may have occurred in this proceeding. Do you realize that?” This question provided some explanation of the nature of the right to appeal and the consequences of waiving it, and was met with an affirmative response. Additionally, the defendant acknowledged signing the written waiver form, and answered that he discussed it with his attorney before he signed it, that he understood all those discussions, that he was satisfied with those discussions, and that he signed it of his own free will. Granted, whether the appeal waiver is valid in this case presents a very close question given, inter alia, that the on-the-record explanation of the nature of the right to appeal and the consequences of waiving it was terse and included no reference to a higher court or the Appellate Division; the defendant had a limited education, having stopped attending school in the eighth grade; and he had minimal prior experience with the criminal justice system, having been adjudicated a youthful offender but not having been convicted of a felony previously. Nonetheless, the record before us, consisting of the oral colloquy and the detailed written waiver, sufficiently demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal. People v Batista, 2018 NY Slip Op 07445, Second Dept 11-7-18

CRIMINAL LAW (APPEALS, WAIVER, IN A CLOSE CASE THE SECOND DEPARTMENT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL, THE COMPREHENSIVE OPINIONS BY TWO CONCURRING JUSTICES AIM TO INSTRUCT TRIAL JUDGES ON THE REQUIREMENTS FOR A VALID WAIVER (SECOND DEPT))/APPEALS (CRIMINAL LAW, WAIVER, IN A CLOSE CASE THE SECOND DEPARTMENT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL, THE COMPREHENSIVE OPINIONS BY TWO CONCURRING JUSTICES AIM TO INSTRUCT TRIAL JUDGES ON THE REQUIREMENTS FOR A VALID WAIVER (SECOND DEPT))/WAIVER OF APPEAL (CRIMINAL LAW, IN A CLOSE CASE THE SECOND DEPARTMENT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL, THE COMPREHENSIVE OPINIONS BY TWO CONCURRING JUSTICES AIM TO INSTRUCT TRIAL JUDGES ON THE REQUIREMENTS FOR A VALID WAIVER (SECOND DEPT))