Issue before the Court: Whether the love affair between the New York Court of Appeals and appeal waivers is over.

 

Held: Unclear.  We are not optimistic.

 

CAL Observes:

 

Bisono was a collection of 10 appeal waiver cases that had  garnered individual  leave grants to defendants, and immediate relegation to  SSM review, between January 20 and June 17, 2020.  They came from the Second, Third and Fourth Departments; 9 of the 10 were excessive sentence cases. These grants followed swiftly  in the wake of People v. Thomas/Lang/Green, 34 NY 3d 545 (2019), in retrospect a consequential appeal waiver decision.  Although cases on an SSM track are generally either decided, or removed to full briefing, within several months of a leave grant, these cases languished with no end in sight until the Court, in a highly unusual move, officially put them on for “conference”on a loose day in December.  Shortly thereafter, the 10 cases, collectively bound in one decision under People v. Bisono, were decided on December 15th.  In all 10 cases, the waivers were struck down as invalid, as the waivers were improperly explained to the defendant.

 

The majority decision is short and fairly opaque, merely describing the results as a natural consequence of Thomas, where, in Green and Lang, waivers were struck down because they were extracted with overly broad language stating that the waivers encompassed more than just a limited waiver.

 

It is only with the bemoaning partial dissent (in one of the 10 cases) by Judge Garcia that the ostensible importance of Bisono becomes clear.  Although the waivers in Green and Lang were particularly horrendous, it appears that Bisono stands for the proposition that Thomas/Green/Lang stands for the proposition that any overstating of the breadth of the waiver would invalidate it, even if counterbalanced by other language elsewhere.  That is what Judge Garcia believes, anyway.  That is unlikely to be what the majority in Thomas meant to hold–certainly the First Department does not yet think so-- but it may be the upshot.  Thank you Judge Garcia.

 

In the meantime, the Court has a number of cases soon to be argued, with full briefing, that involve appeal waivers even more egregious than those in Bisono.  Let’s wait to see what happens with those cases.

 

Notably, amicus briefs in two of the 10 cases asked the Court to overrule Seaberg, at least in suppression cases.  The Court did not decide those issues.  Hmmmm...