Issue before the Court: Whether an appeal waiver forecloses review of the post-plea violation of the defendant’s statutory right to speak on his own behalf at sentencing.

Held: In an unsigned memorandum ruling on SSM in which four judges concurred, the Court accepted the Appellate Division’s conclusion that the violation of Mr. Brown’s statutory right to make a personal statement at sentencing pursuant to C.P.L. § 380.50(1) did not survive the valid appeal waiver.  The Court declined to include the statutory violation within the “narrow class of nonwaivable defects” that implicate the integrity of the criminal justice system or raise public policy concerns.  Claims that had “not yet reached full maturation” at the time of the appeal waiver colloquy could also be subject to its restrictions, the Court concluded.  The Court also dismissed the argument that the statutory violation rendered the sentence illegal, and therefore not subject to waiver.

Judge Fahey concurred in the result on the ground that Mr. Brown’s arguments “are unpreserved.” Judge Wilson dissented. 

CAL observes: 

The ruling is disheartening on so many levels, many of which were eloquently described by Judge Wilson in his lengthy dissent, described below.  Another cause for concern is the Court’s broad language regarding the waiver of claims that are not yet fully mature.  The defense’s  briefing referenced Appellate Division cases in which claims survived appeal waivers where, e.g., a sentencing court violated a plea court’s promised sentence; the prosecution refused to honor a sentence promised at the plea colloquy; and the sentencing court enhanced the promised sentence based on the defendant’s post-plea conduct.  In the future, will we be able to argue that this decision’s other language focusing on the statutory right to make a personal statement limits its application to only those claims raising a violation of that right?

Judge Fahey’s conclusion that Mr. Brown’s arguments were unpreserved only merits comment because he seems to have adopted the Appellate Division’s finding wholeheartedly despite a record (albeit short) showing clear preservation by Mr. Brown himself - that, as soon as the court imposed the sentence without having afforded Mr. Brown the opportunity to speak, Mr. Brown  asked, “Am I going to get a chance to talk?”  If that’s not preservation, we don’t know what is.

Judge Wilson’s dissent is a great read. To explain the importance of the right to speak on one’s own behalf, Judge Wilson went all the way back to Socrates’ statement before he was sentenced in 399 BCE.  The right has been recognized in English common law since the 17th century, became part of New York’s common law and was codified into New York statutory law but, Judge Wilson, noted, “[i]t stopped with George Brown.”  Although defendants no longer face the death penalty if convicted of a felony, Judge Wilson noted that the statements they make at sentencing had the potential to impact the length of their incarceration and the terms of their reentry.  The Appellate Division may look to their statements in deciding whether to reduce a sentence in the interest of justice.  And the sentencing hearing transcript is considered by the Board of Parole.  Judge Wilson also recognized a “broader institutional purpose” of the right to make a personal statement: the recognition of a defendant as a human, and not the object of a prosecution.  The record did not support a finding that Mr. Brown actually bargained away his right to speak at sentencing, and the cost of a remand for resentencing (transportation to and from court) was compared to the “[t]he cost to the judicial system of turning its back on a statutory and common-law right [which is] the loss of confidence in the system itself.”