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Waiver of Appeal Not Effective

In finding the defendant did not effectively waive his right to appeal, the Second Department explained:

…[T]he record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The defendant’s purported waiver of the right to appeal is unenforceable, as the record does not indicate that he had ” a full appreciation of the consequences'” of such waiver … . While the defendant signed a written waiver, a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” … . Accordingly, in the absence of a knowing, voluntary, and intelligent waiver of the right to appeal, the defendant retained his right to challenge the denial of that branch of his omnibus motion which was to suppress identification testimony… . People v Crawford, 2013 NY Slip Op 06705, 2nd Dept 10-16-13

 

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Waiver of Appeal Invalid; Counsel Did Not Take Position Adverse to Client Re: Pro Se Motion

In affirming the conviction, the Third Department determined the waiver of appeal (re; the harshness of the sentence) was not valid and defendant’s counsel had not take a position adverse to the defendant with respect to defendant’s pro se motion to withdraw his guilty plea. Although defense counsel responded negatively when the court asked if counsel knew of any legal basis for defendant’s motion, the Third Department explained that counsel was unaware of the contents of the motion at the time the court asked about it:

County Court failed to adequately distinguish the right to appeal from  those rights that are automatically forfeited upon  a guilty plea, thus rendering defendant’s appeal waiver invalid…. Moreover, no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal his conviction that he was  also waiving his right to appeal the harshness of his sentence …. Nor do we  find that the deficiencies in the allocution are cured by defendant’s written appeal waiver…  * * *

…[D]efense counsel’s negative  response  to County  Court’s inquiry  at the outset of the hearing as to whether  “there [was] any  legal basis in [counsel’s] knowledge to allow [defendant] to withdraw his plea of guilty” was clearly not an opinion on the merits of defendant’s pro se motion – which counsel had not yet reviewed – and, thus, counsel did not thereby take a position adverse to that of his client or affirmatively undermine  the arguments  that defendant sought to present to the court… .  People v Pimentel, 104070, 3rd Dept 7-11-13

 

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Valid Waiver of Appeal Did Not Encompass Challenge to Severity of Sentence in this Case

The Fourth Department noted that a valid waiver of the right to appeal does not encompass a challenge to the severity of the sentence when the defendant was not advised of the potential periods of incarceration or the potential maximum term of incarceration.  The court, however, concluded the sentence was not unduly harsh or severe. People v Virgil, 783, 4th Dept 7-5-13

 

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Defendant Should Have Been Adjudicated a Youthful Offender; Waiver of Appeal Not Valid

The Fourth Department determined the defendant’s waiver of appeal was invalid and County Court should have adjudicated the defendant a youthful offender (re: criminal possession of a weapon):

…[T]he waiver of the right to appeal is invalid because “the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice”… .

A defendant between the ages of 16 and 19 who, like defendant herein, “has been convicted of an armed felony offense . . . is an eligible youth if the court determines that . . . [there are] mitigating circumstances that bear directly upon the manner in which the crime was committed” (CPL 720.10 [3] [i]), and we conclude that such is the case here. The record reflects that defendant was the victim of a brutal attack by multiple perpetrators the day prior to the armed felony offense at issue herein. … Defendant told the police that he had fired a single shot into the porch of his attackers’ house “to send a message to them to stop messing with him as he was a serious threat if need be.” According to defendant, he knew that his attackers would not be home and, indeed, the record reflects that the residence was unoccupied at the time of the shooting.  People v Amir W, 759, 4th Dept 6-28-13

 

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Failure to Fully Inform About Postrelease Supervision Required Reversal

After noting that a waiver of appeal does not preclude a challenge to the voluntariness of a guilty plea, the Third Department reversed because the defendant was not fully informed about the promised duration or potential range of postrelease supervision:

Here, the record reflects, as the People concede, that while the plea agreement included a specific negotiated sentence and a mention of postrelease supervision, defendant was never advised by the court of either a promised specific duration or the potential range of the mandatory postrelease supervision component prior to sentencing. Accordingly, his decision to plead guilty was not a knowing, voluntary and intelligent one and, therefore, the judgment of conviction must be reversed… . People v Brown, 105107, 3rd Dept 6-27-13

 

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Defendant Who Pled to All Charges Without a Plea Bargain Could Not Be Required to Waive Appeal

The Third Department noted that the defendant should not have been required to waive his right to appeal where he pled to all the charges and there was no plea bargain:

Having exercised his statutory  right to  plead  guilty to  all of  the charges levied against him in the indictment and inasmuch as “no promise, plea agreement, reduced charge, or any other bargain or consideration” was given in exchange for that plea, defendant was improperly required to waive his right to appeal … .  People v Crump, 104433, 3rd Dept, 6-6-13

 

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Waiver of Appeal Not Sufficient

The Third Department determined defendant’s waiver of his right to appeal, which included a written waiver, was not sufficient because it was not clear he understood the waiver was separate and distinct from the rights given up by the guilty plea.  The defendant was 21 years old, had no prior criminal history and had some mental health problems.  The Third Department wrote:

…[T]he court did not ensure that “defendant ha[d] ‘a full appreciation of the consequences’ of such waiver”…, which requires record proof that the defendant “comprehend[s] that an  appeal waiver ‘is separate and  distinct from  those rights automatically forfeited upon  a plea of guilty'”….  This was  especially important considering defendant’s age, mental health history and lack of prior criminal history; defendant was 19 years old at the time of the crime and 21 at the time of sentencing, had  been diagnosed and  had  ongoing problems with attention deficit hyperactivity disorder, past history of suicidal ideation, bipolar disorder, a possible learning disorder and  a significant history of acting out on  impulse.  The written waiver also failed to explain the separate and distinct nature of the right being waived.  As it is not evident on the face of the record that defendant was  aware  of this separate and  distinct nature, we cannot be sure that his waiver of the right to appeal was knowingly and intelligently made… .  People v Bouton, 103593B, 3rd Dept, 6-6-13

 

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Criteria for Valid Waiver of Appeal Explained

In finding the defendant did not make a valid waiver of his right to appeal because the colloquy was inadequate, in spite of the defendant’s signing a written waiver, the First Department wrote:

We note that litigation over the validity of appeal waivers, which arises regularly from many courts, can best be avoided if trial judges separately llocate defendants on the waiver of the right to appeal … . We again remind the courts that the better practice is to secure a written waiver, along with a thorough colloquy to ensure the defendant’s understanding of its contents … . It would be best if the court made clear that this is a separate and important right being waived, and that by signing the waiver, the plea and sentence are final, and the defendant agrees to accept the sentence imposed. The court cannot rely solely on defense counsel to explain the significance of the written waiver. People v Oquendo, 2013 NY Slip Op 02320, 9617, 1090/09, 1st Dept 4-4-13

 

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Guilty Plea Precludes Appeal of Statutory Speedy Trial Violation But Not Constitutional Speedy Trial Violation

By pleading guilty a defendant forfeits appellate review of a claim that his statutory right to a speedy trial pursuant to Criminal Procedure Law 30.30 was violated. However, a defendant’s constitutional speedy trial claim survives both a guilty plea and a waiver of the right to appeal. People v Franco, 2013 NY Slip Op 01570, 2009-10119, Ind No 10795/07, 2nd Dept. 3-13-13

 

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Sentence Could Be Challenged In Spite of Waiver of Appeal.

A valid waiver of the right to appeal did not preclude defendant from challenging the severity of his sentence where the sentencing court did not inform the defendant of the maximum term of incarceration and there was no specific sentence promise at the time of the waiver.  People vs Scott, 107, KA 11-01655 Fourth Dept. 2-8-13

 

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