Waiving Your Right to Appeal a Criminal Conviction in New York

In most negotiated guilty pleas throughout New York City’s Criminal and Supreme Courts, as well as town, village and County Courts throughout Rockland, Westchester and the Hudson Valley, defendants are expected to waive their right to appeal their conviction and sentence. From one point of view, this makes sense. After all, if a defendant and his or her attorney have negotiated a plea deal that they are happy with, why would the defendant turn around and try to unwind what transpired with an appeal to the Appellate Division or Appellate Term. One simple answer is that people change their minds, which is typically not a reason to vacate a guilty plea. However, that change of mind often goes hand in hand with new information or guidance from some other source – information that the defendant’s counsel and/or the sentencing court failed to provide to the defendant when they made the decision to plead guilty. Depending on the nature and importance of that missing information, the voluntariness and intelligence of a guilty plea can be called into question. Despite this, when defendants are routinely expected to waive their right to appeal as part of the plea deal, this often forecloses any otherwise available avenue of vacating that uninformed or underinformed plea.

This leads to frequent challenges on appeal by criminal defendants to the waiver of appeal itself. While there are certain basis for an appeal that can always be raised regardless of a waiver of appeal, such as jurisdiction and voluntariness, many of the most common and otherwise valid reasons for an appeal of a guilty plea will be cut off by such a waiver.

In a recent decision by the Appellate Division, Second Department in Brooklyn, New York’s intermediate appellate court, the Court was considering a case in which a Queens man had pleaded guilty to Robber in the First Degree, PL 160.15, and received a 16 year prison sentence as part of the negotiated plea deal. The appellate court’s decision was focused largely on the important and pervasive under-performance of many trial courts in ensuring that defendants understand the rights that they are giving up when they waive the right to appeal, and that such a waive is being made voluntarily and intelligently. While the Court held that in this case that the waiver of appeal was valid, the Court pointed out that at least 380 appellate waivers analyzed by appellate judges in the preceding five years had been found invalid. Further, a majority of those came from the Second Department which includes Brooklyn, Queens, Westchester County and Rockland County.

The Court’s opinions in this case also bring forward the larger issue of appellate waivers in general. The Court of Appeals has held in the past that enforcing appellate waivers is a positive as it serves the public interest and help to “hold parties to their bargains.” On the other hands, many feel that appellate waivers should not be honored at all, or even be on the table in the first place, given the incredible importance of a person’s constitutional right to have a higher court review the actions of a lower court. At least one judge in Manhattan draws a distinction between plea deals that involve a plea to the top and most serious count of an indictment, and to deals that involve a reduction to a lower charge. This particular judge refusese to require or allow defendants waive their right to appeal in the former, but allowing it in the latter.

Whatever line courts choose to draw in this regard, it is certainly an evolving area that is coming into increased focus. Any defendant considering a plea deal should, in addition to thinking long and hard about the charges they are pleading guilty to and the sentence being promised, also take enough time to become fully informed about any waiver of appeal being required, and not allow such a waiver to become an afterthought discussed for less than ten seconds with his or her lawyer on the spot.

Criminal attorneys representing defendants in matters throughout New York City and the Hudson Valley, Crotty Saland PC was founded by two former Manhattan prosecutors.

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