ramifications waiver in New York

2020The court's inquiry into defendant's understanding of the waiver of his right to a jury trial "was sufficient to establish that defendant understood the ramifications of such waiver" ( People v Smith , 6 NY3d 827, 828 [2006], cert denied 548 US 905 [2006]).

2016The [court’s] inquiry here, though minimal, was sufficient to establish that defendant understood the ramifications of such waiver” (People v Smith, 6 NY3d 827, 828 [2006], cert denied 548 US 905 [2006]; see Hailey, 128 AD3d at 1416 ).

2013Defendant affirmed that she had discussed the waiver with counsel, and the court confirmed that defendant had executed a written appeal waiver, which acknowledged that she was voluntarily waiving the right to appeal her conviction and sentence (see People v Tolliver, 92 AD3d 1024, 1024 [2012]; People v McDuffie, 89 AD3d 1154, 1156 [2011], lv denied 19 NY3d 964 [2012]).

2013Defendant affirmed that she had discussed the waiver with counsel, and the court confirmed that defendant had executed a written appeal waiver, which acknowledged that she was voluntarily waiving the right to appeal her conviction and sentence (see People v Tolliver, 92 AD3d 1024, 1024 [2012]; People v McDuffie, 89 AD3d 1154, 1156 [2011], lv denied 19 NY3d 964 [2012]).

2012A review of the record reveals that such a waiver was mentioned only in passing in connection with defendant’s plea and provides no basis for us to conclude that “defendant understood the ramifications of the waiver” (People v Burton, 93 AD3d 949, 949 [2012], lv denied 19 NY3d 958 [2012]).

2012A review of the record reveals that such a waiver was mentioned only in passing in connection with defendant’s plea and provides no basis for us to conclude that “defendant understood the ramifications of the waiver” (People v Burton, 93 AD3d 949, 949 [2012], lv denied 19 NY3d 958 [2012]).

2016The [court’s] inquiry here, though minimal, was sufficient to establish that defendant understood the ramifications of such waiver” (People v Smith, 6 NY3d 827, 828 [2006], cert denied 548 US 905 [2006]; see Hailey, 128 AD3d at 1416 ).

2016The [court’s] inquiry here, though minimal, was sufficient to establish that defendant understood the ramifications of such waiver” (People v Smith, 6 NY3d 827, 828 [2006], cert denied 548 US 905 [2006]; see Hailey, 128 AD3d at 1416 ).

2015County Court distinguished the right to appeal from those rights forfeited by her guilty plea during the plea colloquy, after which defendant acknowledged her understanding of the ramifications of the waiver and executed a detailed written waiver in open court (see People v Smith, 123 AD3d 1375, 1375-1376 [2014]; People v Fate, 117 AD3d 1327, 1328 [2014], lv denied 24 NY3d 1083 [2014]). *1503 Defendant’s further challenge to the voluntariness of her guilty plea survives her appeal waiver but, as she acknowledges, is unpreserved given her failure to make an appropriate postallocution motion (se

2015County Court distinguished the right to appeal from those rights forfeited by her guilty plea during the plea colloquy, after which defendant acknowledged her understanding of the ramifications of the waiver and executed a detailed written waiver in open court (see People v Smith, 123 AD3d 1375, 1375-1376 [2014]; People v Fate, 117 AD3d 1327, 1328 [2014], lv denied 24 NY3d 1083 [2014]). *1503 Defendant’s further challenge to the voluntariness of her guilty plea survives her appeal waiver but, as she acknowledges, is unpreserved given her failure to make an appropriate postallocution motion (se

2012Although defendant apparently signed a written waiver of the right to appeal on the date of his plea, there was no discussion or inquiry by Supreme Court as to such waiver in either the plea or sentencing minutes (see People v Bradshaw, 18 NY3d 257, 267 [2011]; People v Borden, 91 AD3d 1124, 1125 [2012], lv denied 19 NY3d 862 [2012]; compare People v McDuffie, 89 AD3d 1154, 1156 [2011], lv denied 19 NY3d 964 [2012]).

2012Accordingly, we cannot conclude that defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v Bradshaw, 18 NY3d 257, 264-266 [2011]; People v Bolden, 78 AD3d 1419, 1420 [2010], lv denied 16 NY3d 828 [2011]; People v Headspeth, 78 AD3d 1418, 1419 [2010]).

2011Defendant also executed a detailed written waiver in open court, assisted by counsel, which described the ramifications of the waiver and acknowledged that defendant was knowingly and voluntarily waiving his right to appeal after being given sufficient time to discuss its consequences with counsel (see People v Thomas, 71 AD3d 1231, 1231 [2010], lv denied 14 NY3d 893 [2010]; People v Gilmour, 61 AD3d 1122, 1123 [2009], lv denied 12 NY3d 925 [2009]).

2011Further, defendant expressed his understanding of the ramifications of the waiver and thereafter executed two written waivers in open court acknowledging the scope of the right waived and that he had been given sufficient time to discuss the waivers with counsel (see People v Thomas, 71 AD3d 1231, 1231 [2010], lv denied 14 NY3d 893 [2010]; People v Gilmour, 61 AD3d 1122, 1123 [2009], lv denied 12 NY3d 925 [2009]).

2011Further, defendant expressed his understanding of the ramifications of the waiver and thereafter executed two written waivers in open court acknowledging the scope of the right waived and that he had been given sufficient time to discuss the waivers with counsel (see People v Thomas, 71 AD3d 1231, 1231 [2010], lv denied 14 NY3d 893 [2010]; People v Gilmour, 61 AD3d 1122, 1123 [2009], lv denied 12 NY3d 925 [2009]).

2011Defendant also executed a detailed written waiver in open court, assisted by counsel, which described the ramifications of the waiver and acknowledged that defendant was knowingly and voluntarily waiving his right to appeal after being given sufficient time to discuss its consequences with counsel (see People v Thomas, 71 AD3d 1231, 1231 [2010], lv denied 14 NY3d 893 [2010]; People v Gilmour, 61 AD3d 1122, 1123 [2009], lv denied 12 NY3d 925 [2009]).

2015Accordingly, we conclude that he knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence (see People v Neithardt, 127 AD3d 1502, 1502 [2015]; People v Brown, 125 AD3d 1049, 1049 [2015]).

2015Accordingly, we conclude that he knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence (see People v Neithardt, 127 AD3d 1502, 1502 [2015]; People v Brown, 125 AD3d 1049, 1049 [2015]).

2015Accordingly, we conclude that he knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence (see People v Neithardt, 127 AD3d 1502, 1502 [2015]; People v Brown, 125 AD3d 1049, 1049 [2015]).

2015Accordingly, we conclude that he knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence (see People v Neithardt, 127 AD3d 1502, 1502 [2015]; People v Brown, 125 AD3d 1049, 1049 [2015]).

2014Contrary to defendant’s contention, we find that he knowingly, intelligently and voluntarily waived his right to appeal his conviction and sentence, as the record demonstrates that County Court distinguished the right to appeal from the rights automatically forfeited by his guilty plea and defendant acknowledged his understanding of the ramifications of the waiver and executed a written waiver in open court (see People v Fate, 117 AD3d 1327, 1328 [2014]; People v Sczepankowski, 110 AD3d 1115, 1115 [2013]).

2014Contrary to defendant’s contention, we find that he knowingly, intelligently and voluntarily waived his right to appeal his conviction and sentence, as the record demonstrates that County Court distinguished the right to appeal from the rights automatically forfeited by his guilty plea and defendant acknowledged his understanding of the ramifications of the waiver and executed a written waiver in open court (see People v Fate, 117 AD3d 1327, 1328 [2014]; People v Sczepankowski, 110 AD3d 1115, 1115 [2013]).

2014Defendant’s contention that his guilty plea was involuntary, which survives his appeal waiver, is unpreserved for our review inasmuch as the record does not reflect that he made an appropriate postallocution motion (see People v Lewis, 118 AD3d 1125, 1125 [2014], lv denied 24 NY3d 1003 [2014]; People v Vandemark, 117 AD3d 1339, 1340 [2014], lv denied 24 NY3d 965 [2014]).

2014Defendant’s contention that his guilty plea was involuntary, which survives his appeal waiver, is unpreserved for our review inasmuch as the record does not reflect that he made an appropriate postallocution motion (see People v Lewis, 118 AD3d 1125, 1125 [2014], lv denied 24 NY3d 1003 [2014]; People v Vandemark, 117 AD3d 1339, 1340 [2014], lv denied 24 NY3d 965 [2014]).

2014Defendant’s contention that his guilty plea was involuntary, which survives his appeal waiver, is unpreserved for our review inasmuch as the record does not reflect that he made an appropriate postallocution motion (see People v Lewis, 118 AD3d 1125, 1125 [2014], lv denied 24 NY3d 1003 [2014]; People v Vandemark, 117 AD3d 1339, 1340 [2014], lv denied 24 NY3d 965 [2014]).

2014Defendant’s contention that his guilty plea was involuntary, which survives his appeal waiver, is unpreserved for our review inasmuch as the record does not reflect that he made an appropriate postallocution motion (see People v Lewis, 118 AD3d 1125, 1125 [2014], lv denied 24 NY3d 1003 [2014]; People v Vandemark, 117 AD3d 1339, 1340 [2014], lv denied 24 NY3d 965 [2014]).

2013Defendant affirmed that she had discussed the waiver with counsel, and the court confirmed that defendant had executed a written appeal waiver, which acknowledged that she was voluntarily waiving the right to appeal her conviction and sentence (see People v Tolliver, 92 AD3d 1024, 1024 [2012]; People v McDuffie, 89 AD3d 1154, 1156 [2011], lv denied 19 NY3d 964 [2012]).

2013Defendant affirmed that she had discussed the waiver with counsel, and the court confirmed that defendant had executed a written appeal waiver, which acknowledged that she was voluntarily waiving the right to appeal her conviction and sentence (see People v Tolliver, 92 AD3d 1024, 1024 [2012]; People v McDuffie, 89 AD3d 1154, 1156 [2011], lv denied 19 NY3d 964 [2012]).

2013During the plea colloquy, County Court distinguished the right to appeal from the rights forfeited by the guilty plea and explained to defendant the ramifications of the waiver (see People v Lopez, 97 AD3d 853, 853 [2012], lv denied 19 NY3d 1027 [2012]).

2013During the plea colloquy, County Court distinguished the right to appeal from the rights forfeited by the guilty plea and explained to defendant the ramifications of the waiver (see People v Lopez, 97 AD3d 853, 853 [2012], lv denied 19 NY3d 1027 [2012]).

2012Turning to the merits, given that the amount of restitution was explicitly included in the plea agreement and defendant did not object to that amount or request a hearing, his challenge to the restitution order is not preserved for our review (see People v Dishaw, 81 AD3d 1035, 1037 [2011], lv denied 16 NY3d 858 [2011]; People v Giovanni, 53 AD3d 778, 778-779 [2008], lv denied 11 NY3d 832 [2008]).

2012Turning to the merits, given that the amount of restitution was explicitly included in the plea agreement and defendant did not object to that amount or request a hearing, his challenge to the restitution order is not preserved for our review (see People v Dishaw, 81 AD3d 1035, 1037 [2011], lv denied 16 NY3d 858 [2011]; People v Giovanni, 53 AD3d 778, 778-779 [2008], lv denied 11 NY3d 832 [2008]).

2012Although defendant apparently signed a written waiver of the right to appeal on the date of his plea, there was no discussion or inquiry by Supreme Court as to such waiver in either the plea or sentencing minutes (see People v Bradshaw, 18 NY3d 257, 267 [2011]; People v Borden, 91 AD3d 1124, 1125 [2012], lv denied 19 NY3d 862 [2012]; compare People v McDuffie, 89 AD3d 1154, 1156 [2011], lv denied 19 NY3d 964 [2012]).

2012Although defendant apparently signed a written waiver of the right to appeal on the date of his plea, there was no discussion or inquiry by Supreme Court as to such waiver in either the plea or sentencing minutes (see People v Bradshaw, 18 NY3d 257, 267 [2011]; People v Borden, 91 AD3d 1124, 1125 [2012], lv denied 19 NY3d 862 [2012]; compare People v McDuffie, 89 AD3d 1154, 1156 [2011], lv denied 19 NY3d 964 [2012]).

2012Turning to the merits, given that the amount of restitution was explicitly included in the plea agreement and defendant did not object to that amount or request a hearing, his challenge to the restitution order is not preserved for our review (see People v Dishaw, 81 AD3d 1035, 1037 [2011], lv denied 16 NY3d 858 [2011]; People v Giovanni, 53 AD3d 778, 778-779 [2008], lv denied 11 NY3d 832 [2008]).

2012Turning to the merits, given that the amount of restitution was explicitly included in the plea agreement and defendant did not object to that amount or request a hearing, his challenge to the restitution order is not preserved for our review (see People v Dishaw, 81 AD3d 1035, 1037 [2011], lv denied 16 NY3d 858 [2011]; People v Giovanni, 53 AD3d 778, 778-779 [2008], lv denied 11 NY3d 832 [2008]).

2021He then executed a written waiver in open court after reviewing it with counsel and stated that he understood the waiver form and signed it voluntarily ( see People v Purnell , 186 AD3d 1834, 1834 [2020], lv denied 36 NY3d 975 [2020]; People v Pugliese , 185 AD3d 1358, 1359 [2020]).

2021He then executed a written waiver in open court after reviewing it with counsel and stated that he understood the waiver form and signed it voluntarily ( see People v Purnell , 186 AD3d 1834, 1834 [2020], lv denied 36 NY3d 975 [2020]; People v Pugliese , 185 AD3d 1358, 1359 [2020]).

2019Although defendant's contention that County Court abused its discretion in denying his motion to withdraw his plea — which relates to the voluntariness of the plea — is not precluded by the appeal waiver ( see People v Walker , 173 AD3d 1561 , 1561-1562 [2019]; People v Farnsworth , 140 AD3d 1538, 1539 [2016]), we find this claim to be without merit.

2018As to the sufficiency of the waiver itself, defendant was informed that an appeal waiver was a condition of her plea agreement, was advised of its separate and distinct nature and confirmed that she understood and agreed to the waiver ( see People v Tulip , 150 AD3d 1564, 1565 [2017]; People v Howe , 150 AD3d 1321, 1322 [2017]).

2018Nothing on the face of the plea colloquy suggests that defendant's asserted memory lapses or mental health issues impaired her ability to understand the nature of the plea proceeding or the ramifications of her waiver; to the contrary, the record reflects that defendant responded appropriately to County Court's inquiries and assured the court that she understood what was transpiring ( see People v Sorey , 55 AD3d 1063, 1064 [2008], lv denied 11 NY3d 930 [2009]; People v Bennett , 30 AD3d 631, 631 [2006], lv denied 7 NY3d 809 [2006]).

2018For nearly three decades, we have endured the ramifications of a doctrine built on a "cursory rationale" that "does not seem very persuasive" ( see Walston , 23 NY3d at 991 [Smith, J., concurring]).