9.34 - 1. Waiver Or Forfeiture By Operation Of Law

• Jurisdiction: New York

1. Waiver or Forfeiture by Operation of Law

A defendant who pleads guilty necessarily waives the constitutional rights attending a trial.¹⁷²³ (Jurisdictional defects are never waived.¹⁷²⁴) In addition, a defendant who pleads guilty automatically forfeits a variety of claims as a matter of policy to assure the finality of litigation intended by a guilty plea, to conserve judicial resources and to prevent defendants from attempting to undermine their plea agreements on appeal.¹⁷²⁵ The rights that are forfeited include those that allege violations of statutory rights that confer on defendants greater rights than those demanded by the constitution,¹⁷²⁶ as well as those that allege an impairment of the fact-finding process and are thus fundamentally inconsistent with pleas of guilty.¹⁷²⁷ When a defendant pleads guilty the conviction rests directly on the sufficiency of the plea, not on the legal or constitutional sufficiency of any proceedings that might have otherwise resulted in a guilty verdict after trial.¹⁷²⁸ But subject-matter jurisdiction—the jurisdictional sufficiency of the accusatory instrument itself—may always be challenged on appeal.¹⁷²⁹

In contrast to those rights necessarily waived in the taking of a guilty plea, a much broader category of rights is deemed forfeited as a consequence of a valid plea of guilty. Inasmuch as a guilty plea works a forfeiture of nonjurisdictional defects,¹⁷³⁰ it forecloses a host of challenges that would otherwise be reviewable as a matter of constitutional, statutory or decisional law. The forfeitures occasioned by a guilty plea extend to claims premised upon pre-indictment prosecutorial misconduct;¹⁷³¹ the propriety of the defendant’s psychiatric interview;¹⁷³² a failure to provide a CPL § 710.30 notice; the statutory right to a speedy trial; the denial of an application for leave to file a late motion to suppress; the foundation laid for the accuracy of a blood alcohol test; transactional immunity; the exercise of allegedly discriminatory peremptory challenges to jurors; an ex post facto challenge to an evidentiary rule change; adverse Sandoval and Molineux rulings; adverse discovery, prosecutor-recusal, severance, interest-of-justice and separate-trial rulings; pre-indictment prosecutorial misconduct; an allegedly unconstitutional statutory presumption; statutory double jeopardy; selective prosecution; the statute of limitations; statutory interpretation; nonjurisdictional defects in grand jury proceedings; the sufficiency of the evidence supporting an indictment; and the form and factual specificity of an indictment. The foregoing list of rights and claims, while lengthy, is by no means exhaustive, for the waivers that flow from a guilty plea are necessarily almost as numerous as the various rights afforded to an accused.¹⁷³³ In addition, the defendant’s guilty plea forfeits his right to challenge venue (the proper geographic county or place of trial) and to challenge the denial of a late notice of intention to present a psychiatric defense.¹⁷³⁴

There are types of rights that are not necessarily waived or forfeited by a guilty plea: (1) the right to challenge the voluntariness of the plea itself¹⁷³⁵ and the right to effective assistance of counsel at the plea proceeding;¹⁷³⁶ (2) some rights that affect the power of the state over the defendant;¹⁷³⁷ and (3) the statutory rights to appeal from orders denying suppression motions¹⁷³⁸ and to argue on appeal that a negotiated sentence is unduly harsh or severe.¹⁷³⁹ Defects in grand jury proceedings that survive a guilty plea must be jurisdictional.¹⁷⁴⁰

Generally stated, claims related to the integrity of the criminal justice system, and rights of constitutional dimension that go to the very heart of the process, survive a guilty plea. The distinction between claims that do and do...