Issue before the Court: The validity of the waiver of the right to appeal.

 

Held: The oral appeal-waiver colloquy was sufficient for the Court to uphold the validity of the appeal waiver, particularly in light of the defendant’s prior experience with the criminal justice system.  

 

CAL Observes:  The issue most-discussed in the intermediate appellate courts used to be harmless error (People v. Crimmins).  Now it’s the validity of the appeal waiver.  Anecdotally, the appeal waiver is held either invalid or irrelevant at least half the time.  Indeed, in some counties in New York City, it is rare to see an appeal waiver that is validly executed. This  does not factor in the many thousands of criminal defendants, each year, who do not follow through with an appeal under the misguided impression that the ostensible appeal waiver is validly entered, or that such waiver, even if validly entered, has any bearing on the viability of the appellate issues present in their case.  Small wonder that criminal defendants are unclear about waivers, since even the trial judges have difficulty explaining the appeal, and the potential waiver thereof, to the defendants in comprehensible terms.  Although the Court of Appeals has often said, and said again in Sanders, that “no particular litany” is required, if there were a particular approved appeal-waiver “litany,” it would have saved, over the years since Seaberg, and would still save going forward, a lot of appellate paperwork and effort.  

Could it be that courts will come to recognize that appeal waivers are a bad idea whose time has come and gone?  Fat chance.  Of particular note in Sanders are two points of disagreement between the majority and Judge Rivera in dissent.  The first is the relevance of the defendant’s prior criminal experience.  While everyone can agree that the defendant’s age, education level, and mental stability- - for example - - are relevant factors, the majority also deemed the defendant’s raw number of prior convictions to be relevant.  Judge Rivera noted, aptly in our view, that criminal history is really irrelevant unless the prior history included guilty pleas involving appeal waivers.  Second, although the majority, in a footnote, was “troubled” by the fact that the waiver colloquy was conducted by the prosecutor, not the court (a common  practice in Westchester), it did not formally factor it into its holding since the parties did not brief the issue.  Judge Rivera echoed this discomfiture in her dissent; this in itself would have invalidated the waiver.

Appellate defense attorneys take note: brief the invalidity of the waiver due to colloquy being conducted by the prosecutor, not the judge!  That issue is an open one in the Court of Appeals; at the very least it is a factor weighing against the validity of the waiver. (And, trial defense counsel should take note that a prosecutor-conducted waiver-colloquy is likely to result in the waiver being struck down.)