AuthorCantarero, Jonathan


In New York's Criminal Courts, there are few legal procedures that are more meaningless than appeal waivers. Designed as bargaining tools to ensure that defendants resolve their cases without appealing to a higher court, appeal waivers used to play a significant role in reducing caseloads and conserving resources. (1) Without an appeal waiver, for example, a defendant could negotiate a favorable sentence, plead guilty, and then appeal their conviction on the grounds that the sentence was harsh and excessive. (2) The preclusive effect of appeal waivers, however, has slowly eroded due to the poor practices surrounding their execution in court. Indeed, challenges to arguably invalid appeal waivers have resulted in nearly as much litigation as the waivers were designed to avoid. (3) Ironically, such challenges have produced a sea of case law--culminating in People v. Thomas, (4) decided in late 2019 -- that has done little to correct the practices which led to invalid waivers in the first instance. (5) Beyond that, successful challenges to appeal waivers have resulted in procedural relief for defendants in hundreds if not thousands of cases, requiring prosecutors and defense attorneys to, in many instances, renegotiate the original plea or proceed to trial long after the alleged crime was committed. (6) Not only has all this placed a greater burden on courts, prosecutors, and defense attorneys, but it has subjected defendants to additional, unnecessary interactions with the criminal justice system. All told, New York's current practices in appeal waiver execution fail to serve their intended purpose, (7) and fail to do so at an alarmingly high rate. (8)

With these considerations in mind, this article discusses the history of appeal waivers in New York and offers practical tips to promote their proper execution in criminal courts in ways that protect defendants while still reducing caseloads and conserving judicial resources. To that end, Part I of this article provides an overview of appeal waivers in New York, Part II outlines the problems engendered by prevailing appeal waiver practices, and Part III discusses tools that can be used to solve these problems.


    1. Historical Overview

      Contrary to popular belief, there is no general constitutional right to appeal under either Federal or New York law. (9) Rather, the right to appeal in New York is solely a creature of statute, subject to modification and revision by the State legislature. (10) Thus, while New York has provided for a right to appeal from a criminal conviction since the 19th century, (11) the scope of that right has been refined over time. (12) Currently, the right to appeal appears in Section 450.10 of the Criminal Procedure Law, which provides that, with certain exceptions, "[a]n appeal to an intermediate appellate court may be taken as of right by the defendant from the... judgment, sentence and order of a criminal court." (13)

      The "waiver" of the right to appeal, however, is a far more recent invention. The New York State Court of Appeals--the state's highest court--first considered the subject in People v. Williams. (14) In that case, the People had requested an appeal waiver as part of a plea deal on the grounds that the defendant waited until "eve of trial" to plead guilty. (15) The People argued that special arrangements were made for witness testimony at trial, which were no longer feasible in the event the defendant was allowed to appeal and obtained substantive relief. (16) In a brief decision, the court concluded that a "defendant may properly be held to the waiver of his right to appeal from the denial of his suppression motion," "where the plea... was voluntarily entered, with full comprehension on defendant's part of both the plea and the associated condition." (17) By focusing on the entirety of the plea agreement, however, the court did not directly address whether appeal waivers were legal bargaining tools in the first instance. It was not until fourteen years later that the court confronted that issue directly in People v. Seaberg. (18) There, the "question [was] whether criminal defendants may waive their rights to appeal as part of a negotiated sentence or plea bargain." (19) In answering that question in the affirmative, the court underscored the value of plea bargaining--and by extension, appeal waivers--to the criminal justice process:

      Plea bargaining is now established as a vital part of our criminal justice system. Indeed, as we recognized years ago, the volume of criminal prosecutions is so great that if full trials were required in each case New York's law enforcement system would collapse. Certainly nothing has happened since then to cause us to change that observation. The judicial acceptance of plea bargaining, however, rests upon broader policy considerations. In addition to permitting a substantial conservation of prosecutorial and judicial resources, it provides a means where, by mutual concessions, the parties may obtain a prompt resolution of criminal proceedings with all the benefits that enure from final disposition. The plea bargain, or negotiated sentence, enables the parties to avoid the delay and uncertainties of trial and appeal and permits swift and certain punishment of law violators with sentences tailored to the circumstances of the case at hand. The pleading process necessarily includes the surrender of many guaranteed rights but when there is no constitutional or statutory mandate and no public policy prohibiting it, an accused may waive any right which he or she enjoys. (20) After rejecting several public policy arguments advanced by the defendants, the court went on to state that, "to be enforceable," an appeal waiver must, like a plea deal, "not only be voluntary but also knowing and intelligent." (21) The court added that this determination must be made, in the first instance, by the lower court, by reference to "all the relevant facts and circumstances surrounding the waiver, including the nature and terms of the agreement the age, experience and background of the accused... . the reasonableness and the appropriateness of the bargain... and its effect on 'the integrity of the criminal justice system.'" (22)

      Notably, in the period since and including Seaberg, the Court of Appeals has considered appeal waivers in two basic stages. (23) "In the earliest cases... the litigation was focused on whether appeal waivers were enforceable as components of the plea-bargaining process," rather than based on the precise language of the waivers themselves. (24) In those instances, the court was highly deferential to the procedural mechanisms adopted by the criminal courts to secure a defendant's waiver of the right to appeal. For example, in some cases, the court often "upheld appeal waivers [even] where no court colloquy with the defendant occurred on the subject, relying on the record as a whole, particularly defense counsel's affirmative conduct in securing the desired sentence sought to be reviewed on appeal." (25) More surprisingly perhaps, there were other cases in which the court upheld waivers where they had been "elicited through court colloquies suggesting an absolute bar to review, even though... the defendant retained the right to review certain fundamental issues despite the waiver"--in other words, even where the lower court had clearly misstated the law. (26)

      During the second stage, however, "the litigation required [the court's] focus to shift from the enforceability of broad appeal waivers to the precise language of the colloquies used by the courts in eliciting waivers." (27) Despite the fact that this provided an open invitation for the court to require specific language in order to execute a valid appeal waiver, the court had declined to do so. (28) To the contrary, throughout the history of appeal waiver challenges, the court has "consistently emphasized that trial courts need not engage in any particular litany in order to obtain a valid waiver of appellate rights." (29) Thus, the court has "repeatedly rejected mandatory catechisms in favor of broader trial court discretion," "[d]espite calls for a compulsory colloquy." (30) This is an important distinction because, whatever the potential remedies are for alleviating the current pandemic concerning problematic appeal waivers, a mandated catechism from the Court of Appeals is likely not a realistic one.

    2. Appeal Waivers in Practice

      Interestingly, while Seaberg was decided over thirty years ago, the process for executing appeal waivers has not changed much, both with respect to when appeal waivers are requested and how they are executed in court. (31) In any event, any meaningful effort to remedy the criminal justice system's failure to effectuate valid waivers must begin with an assessment of how they are currently being brought before and authorized by the courts.

      1. Timing of Appeal Waivers

        To begin, there is no hard-and-fast rule on when an appeal waiver may be considered by the parties to a criminal matter, outside of any parameters set by the judge. That being said, courts and prosecutors tend to request appeal waivers during one of three stages of a criminal case. First, a waiver may be requested at the start of plea negotiations and remain a component thereof until the defendant either agrees to plead guilty or goes to trial. (32) Second, a waiver may be requested toward the end of plea negotiations as a sort of penalty on the defendant for rejecting earlier offers and using up valuable resources--as was the case in Williams. (33) Third, a waiver may be requested following a guilty verdict at trial, long after plea negotiations have failed. (34)

        Under each scenario, a defendant's acceptance of the waiver is based on some prospective benefit. A defendant might, for example, agree to waive their right to appeal as part of a plea deal in exchange for the possibility of pleading guilty...

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