Issue before the Court: Whether the First Department erred in holding the appeal waiver invalid prior to reducing the defendant’s sentence, as excessive, in the interest of justice.

Held: The appeal waiver was valid, so the sentence, which the First Department found to be excessive, was reinstated.

CAL Observes: This is a highly unfortunate and misguided decision on so many levels. Where to begin? With the fact that such a wide-ranging decision, which will negatively impact on tens of thousands of cases and defendants going forward, was decided on SSM? No. While that is true, let’s begin elsewhere:

1. The Court blithely overlooked without comment its own holding in People v. Maracle, 19 N.Y.3d 925, that an appeal waiver of a “conviction” does not waive the right to appeal excessive sentence. A judgment consists of the conviction (either guilty plea or verdict) and the sentence. The Court’s overlooking its own recent case law is indefensible.

2. Tired of year after year of sloppy waiver allocutions, the First Department has made great strides recently in forcing trial-level judges to clean up their acts, by not upholding dodgy waiver allocutions. The Court of Appeals has now set this initiative back, probably irreparably. Nice work!

3. Although inconsistent in its approach to appeal waivers over the years, the Court had seemed to have evolved from its original approach, which was to uphold waiver allocutions as long as the words “appeal” and “waiver” appeared in the same sentence. With this decision, trial judges, who generally loathe appeals from their guilty pleas, can go back to treating appeal waivers casually.

4. The decision, with its casual approach to appeal waivers, indulges in the many fictions that trial level practitioners and appeals courts indulge in. Among them: (1) that trial lawyers are actually conversant with the distinction between issues automatically forfeited by a guilty plea and those that ordinarily survive the guilty plea but are covered by the waiver, and know which issues survive even a valid appeal waiver; they are clueless in this area so cannot explain it to their client and don’t even try. (2) that defendants actually understand any explanation that a defense lawyer might give to them about an appeal waiver; why should the defense lawyer be able to explain it any better than the judge? They can’t and don’t. “[A]lso as a part of this you are waiving your right to appeal?” Great explanation. (3) That waivers are actually a tool that defense lawyers can use to get a better plea deal from the prosecutor. This is a theoretical construct only. The reality is that prosecutors offer pleas because they can’t take all or most of the cases to trial. Prosecutors extract waivers because they can; and defense lawyers accept them because they have no choice but to agree if there’s going to be any offer at all. (4) that the waiver is an agreement between two equally situated parties, rather than a provision in a contact of adhesion that is forced upon the defendant by judges and prosecutors. (5) that anyone actually reads the written waiver form. There are many more such fictions, but you get the idea,

5. And finally, this decision, so carelessly tossed off, will impact negatively on tens of thousands of cases going forward, for years to come and indefinitely. Almost all cases are resolved by guilty plea, and in most courtrooms judges, as a matter of policy, will not accept a guilty plea unless it includes an appeal waiver. After all, when sausage is being made, who wants anyone looking over their shoulder to see how it’s being made? Not the sausage-makers. Nobody except the person who has to eat it. Which in this analogy is the defendant.

Issue before the Court: Whether the First Department erred in holding the appeal waiver invalid prior to reducing the defendant’s sentence, as excessive, in the interest of justice.

 

Held: The appeal waiver was valid, so the sentence, which the First Department found to be excessive, was reinstated.

 

CAL Observes: This is a highly unfortunate and misguided decision on so many levels.  Where to begin?  With the fact that such a wide-ranging decision, which will negatively impact on tens of thousands of cases and defendants going forward, was decided on SSM?  No.  While that is true, let’s begin elsewhere: 

 

1.  The Court blithely overlooked without comment its own holding in People v. Maracle, 19 N.Y.3d 925, that an appeal waiver of a “conviction” does not waive the right to appeal excessive sentence.  A judgment consists of the conviction (either guilty plea or verdict) and the sentence.  The Court’s overlooking its own recent case law is indefensible.

 

2.  Tired of year after year of sloppy waiver allocutions, the First Department has made great strides recently in forcing trial-level judges to clean up their acts, by not upholding dodgy waiver allocutions.  The Court of Appeals has now set this initiative back, probably irreparably.  Nice work!

 

3.  Although inconsistent in its approach to appeal waivers over the years, the Court had seemed to have evolved from its original approach, which was to uphold waiver allocutions as long as the words “appeal” and “waiver” appeared in the same sentence.  With this decision, trial judges, who generally loathe appeals from their guilty pleas, can go back to treating appeal waivers casually.

 

4.  The decision, with its casual approach to appeal waivers, indulges in the many fictions that trial level practitioners and appeals courts indulge in.  Among them: (1) that trial lawyers are actually conversant with the distinction between issues automatically forfeited by a guilty plea and those that ordinarily survive the guilty plea but are covered by the waiver, and know which issues survive even a valid appeal waiver; they are clueless in this area so cannot explain it to their client and don’t even try. (2) that defendants actually understand any explanation that a defense lawyer might give to them about an appeal waiver; why should the defense lawyer be able to explain it any better than the judge?  They can’t and don’t. “[A]lso as a part of this you are waiving your right to appeal?”  Great explanation.  (3) That waivers are actually a tool that defense lawyers can use to get a better plea deal from the prosecutor.  This is a theoretical construct only.  The reality is that prosecutors offer pleas because they can’t take all or most of the cases to trial.  Prosecutors extract waivers because they can; and defense lawyers accept them because they have no choice but to agree if there’s going to be any offer at all.  (4) that the waiver is an agreement between two equally situated parties, rather than a provision in a contact of adhesion that is forced upon the defendant by judges and prosecutors.  (5) that anyone actually reads the written waiver form.   There are many more such fictions, but you get the idea,

 

5.  And finally, this decision, so carelessly tossed off, will impact negatively on tens of thousands of cases going forward, for years to come and indefinitely.  Almost all cases are resolved by guilty plea, and in most courtrooms judges, as a matter of policy,  will not accept a guilty plea unless it includes an appeal waiver.  After all, when sausage is being made, who wants anyone looking over their shoulder to see how it’s being made? Not the sausage-makers.  Nobody except the person who has to eat it.  Which in this analogy is the defendant.