validity of the appeal waiver in New York

2025According to the majority, "[w]here a sentence is fundamentally unjust and all other safeguards have failed, [the Appellate Division is] compelled to exercise [its] constitutionalized interest of justice power to correct the injustice, no matter the validity of the appeal waiver." The majority seems to want to limit invocation of the exception to those appeals involving "unique circumstances" where the sentence would be " 'unjust in its relation to the crime of which the defendant stands convicted' " (majority mem, quoting People v Miles , 173 App Div 179, 185 [3d Dept 1916]; see Lopez , 6 NY3

2017The validity of the appeal waiver is established by defendant’s acknowledgment at the plea colloquy that he understood the nature of the waiver of the right to appeal, which County Court explained was separate from the rights forfeited by the guilty plea, and his execution in open court of a written waiver of appeal (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Murdie, 134 AD3d 1353, 1354 [2015]; People v Therrien, 134 AD3d 1231, 1232 [2015]).

2020Accordingly, without passing on the merits of these issues, we grant counsel's application for leave to withdraw and assign new counsel to address these issues and any others that the record may disclose ( see People v Beaty , 22 NY3d 490, 492-493 [2014]; People v Stokes , 95 NY2d 633 [2001]; People v Cruwys , 113 AD2d 979, 980 [1985], lv denied 67 NY2d 650 [1986]).

2017Accordingly, without passing judgment on the merits of this issue, we grant counsel’s application for leave to withdraw and assign new counsel to address this issue and any others that the record may disclose (see People v Stokes, 95 NY2d 633 [2001]; People v Cruwys, 113 AD2d 979, 980 [1985], lv denied 67 NY2d 650 [1986]).

2026Nonetheless, defendant's challenge to the legality of the minimum period of the indeterminate sentence was rendered moot by his release to parole supervision ( see Balkum , 288 AD2d at 910 ), and we conclude that the exception to the mootness doctrine does not apply ( see Smith , 237 AD3d at 1532; see generally Matter of Hearst Corp. v Clyne , 50 NY2d 707, 714-715 [1980]).

2025Defendant's challenge to the legality of the resentence was rendered moot inasmuch as he has served the sentence in its entirety ( see People v Dennis , 179 AD3d 1451, 1451 [4th Dept 2020]; People v John , 288 AD2d 848, 850 [4th Dept 2001], lv denied 97 NY2d 705 [2002]; People v Dukes , 156 AD2d 959, 960 [4th Dept 1989], lv denied 75 NY2d 918 [1990]), and we conclude that the exception to the mootness doctrine does not apply ( see Matter of Hearst Corp. v Clyne , 50 NY2d 707, 714-715 [1980]) and therefore dismiss the appeal to that extent.

2024Contrary to defendant's related assertion, his "waiver [of the right to appeal] is not invalid on the ground that the court did not specifically inform [him during the oral colloquy] that his general waiver of the right to appeal encompassed the court's suppression ruling[ ]" ( People v Babagana , 176 AD3d 1627 , 1627 [4th Dept 2019], lv denied 34 NY3d 1075 [2019] [internal quotation marks omitted]; see People v Kemp , 94 NY2d 831, 833 [1999]; People v Johnson , 183 AD3d 1256 , 1256 [4th Dept 2020], lv denied 35 NY3d 1046 [2020]).

2022"The defendant's valid waiver of his right to appeal precludes appellate review of his challenge to the hearing court's suppression determination" ( People v Matos , 176 AD3d 976 , 976; see People v Kemp , 94 NY2d 831, 833 ; People v Stevenson , 196 AD3d 705, 706 ).

2024Instead, the court followed the model colloquy nearly verbatim, explaining that defendant retained the right to take an appeal, but that his conviction and sentence would, "as a practical matter," "be final" because he was giving up the right to appellate review of "most claims of error," including claims regarding the severity of the sentence but excluding the "limited claims" that survive an appeal waiver, such as those relating to the voluntariness of the plea, the validity of the appeal waiver, and the legality of the sentence ( see Thomas , 34 NY3d at 567; Edmonds , 229 AD3d at 1277; Peop

2024Instead, the court appropriately followed the model colloquy by explaining that defendant retained the right to take an appeal, but that his conviction and sentence "would normally be final" because he was giving up the right to appellate review of "most . . . claims of error," including the severity of the sentence, except for "a number of limited claims" that would survive the appeal waiver, such as the voluntariness of the plea, the validity of the appeal waiver, the legality of the sentence, the jurisdiction of the court, defendant's competency to stand trial, and the constitutional right

2022To the extent that defendant contends that his guilty plea was not made knowingly, voluntarily and intelligently, such contention survives regardless of the validity of the appeal waiver ( see People v Smith , 188 AD3d 1357, 1357 [2020]).

2021Regardless of the validity of the appeal waiver, defendant's challenge to the voluntariness of the plea survives any such waiver ( see People v Thomas , 190 AD3d 1157, 1159 [2021]; People v Payson , 189 AD3d 1820, 1822 [2020], lv denied 36 NY3d 1099 [2021]; People v Smith , 188 AD3d 1357, 1357 [2020]).

2022It is nonetheless unpreserved in the absence of a postallocution motion, and the narrow exception to the preservation rule is inapplicable ( see People v Guerrero , 194 AD3d 1258, 1260 [2021], lv denied 37 NY3d 992 [2021]; People v Miller , 190 AD3d 1029, 1030 [2021]).

2022Regardless of the validity of the appeal waiver ( see People v Drayton , 189 AD3d 1892, 1893 [3d Dept 2020]), defendant's challenge to the voluntariness of his guilty plea, premised upon County Court's imposition of a five-year period of PRS rather than the three-year period contemplated by the plea agreement, is unpreserved for our review in the absence of an appropriate postallocution motion ( see CPL 220.60 [3]; People v Guerrero , 194 AD3d 1258, 1260 [3d Dept 2021], lv denied 37 NY3d 992 [2021]).

2017We find an issue of arguable merit pertaining to the validity of the appeal waiver that may implicate other potential appealable issues, such as the severity of the sentence (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Mallard, 151 AD3d 1181 [2017]; People v Bates, 139 AD3d 1110, 1111 [2016]).

2017We find an issue of arguable merit pertaining to the validity of the appeal waiver that may implicate other potential appealable issues, such as the severity of the sentence ( see People v Lopez , 6 NY3d 248, 256 [2006]; People v Mallard , 151 AD3d 1181 [2017]; People v Bates , 139 AD3d 1110, 1111 [2016]).

2013Although defendant’s challenge to the voluntariness of his plea survives the appeal waiver, it is not preserved for our review as the record does not reflect that defendant moved to withdraw his plea or vacate the judgment of conviction (see People v Estrada, 102 AD3d 1064, 1064-1065 [2013]).

2013Although defendant’s challenge to the voluntariness of his plea survives the appeal waiver, it is not preserved for our review as the record does not reflect that defendant moved to withdraw his plea or vacate the judgment of conviction (see People v Estrada, 102 AD3d 1064, 1064-1065 [2013]).

2026Defendant's challenge to the voluntariness of his plea and the related claim that counsel was ineffective — to the extent that it impacts the voluntariness of the plea — survives regardless of the validity of the appeal waiver ( see People v Herring , 224 AD3d 1042, 1043 [3d Dept 2024], lv denied 41 NY3d 983 [2024]; People v Sutton , 221 AD3d 1185, 1186 [3d Dept 2023], lv denied 41 NY3d 967 [2024]).

2026Defendant's challenge to the voluntariness of his plea and the related claim that counsel was ineffective — to the extent that it impacts the voluntariness of the plea — survives regardless of the validity of the appeal waiver ( see People v Herring , 224 AD3d 1042 , 1043 [3d Dept 2024], lv denied 41 NY3d 983 [2024]; People v Sutton , 221 AD3d 1185, 1186 [3d Dept 2023], lv denied 41 NY3d 967 [2024]).

2026That said, such contentions — which are premised on defendant's history of mental health issues — are unpreserved for our review as there is no indication that defendant made an appropriate postallocution motion despite having had ample opportunity to do so ( see People v Clark , 246 AD3d 1150, 1151-1152 [3d Dept 2026]; People v Mahood , 238 AD3d 1433, 1434 [3d Dept 2025], lv denied 44 NY3d 983 [2025]; People v Taylor , 194 AD3d 1264, 1265 [3d Dept 2021], lv denied 37 NY3d 975 [2021]), and the narrow exception to the preservation requirement was not triggered here because the record does not r

2026That said, such contentions — which are premised on defendant's history of mental health issues — are unpreserved for our review as there is no indication that defendant made an appropriate postallocution motion despite having had ample opportunity to do so ( see People v Clark , 246 AD3d 1150 , 1151-1152 [3d Dept 2026]; People v Mahood , 238 AD3d 1433 , 1434 [3d Dept 2025], lv denied 44 NY3d 983 [2025]; People v Taylor , 194 AD3d 1264, 1265 [3d Dept 2021], lv denied 37 NY3d 975 [2021]), and the narrow exception to the preservation requirement was not triggered here because the record does not

2026That said, such contentions — which are premised on defendant's history of mental health issues — are unpreserved for our review as there is no indication that defendant made an appropriate postallocution motion despite having had ample opportunity to do so ( see People v Clark , 246 AD3d 1150, 1151-1152 [3d Dept 2026]; People v Mahood , 238 AD3d 1433, 1434 [3d Dept 2025], lv denied 44 NY3d 983 [2025]; People v Taylor , 194 AD3d 1264, 1265 [3d Dept 2021], lv denied 37 NY3d 975 [2021]), and the narrow exception to the preservation requirement was not triggered here because the record does not r

2026That said, such contentions — which are premised on defendant's history of mental health issues — are unpreserved for our review as there is no indication that defendant made an appropriate postallocution motion despite having had ample opportunity to do so ( see People v Clark , 246 AD3d 1150 , 1151-1152 [3d Dept 2026]; People v Mahood , 238 AD3d 1433 , 1434 [3d Dept 2025], lv denied 44 NY3d 983 [2025]; People v Taylor , 194 AD3d 1264, 1265 [3d Dept 2021], lv denied 37 NY3d 975 [2021]), and the narrow exception to the preservation requirement was not triggered here because the record does not

2026That said, such contentions — which are premised on defendant's history of mental health issues — are unpreserved for our review as there is no indication that defendant made an appropriate postallocution motion despite having had ample opportunity to do so ( see People v Clark , 246 AD3d 1150, 1151-1152 [3d Dept 2026]; People v Mahood , 238 AD3d 1433, 1434 [3d Dept 2025], lv denied 44 NY3d 983 [2025]; People v Taylor , 194 AD3d 1264, 1265 [3d Dept 2021], lv denied 37 NY3d 975 [2021]), and the narrow exception to the preservation requirement was not triggered here because the record does not r

2026That said, such contentions — which are premised on defendant's history of mental health issues — are unpreserved for our review as there is no indication that defendant made an appropriate postallocution motion despite having had ample opportunity to do so ( see People v Clark , 246 AD3d 1150 , 1151-1152 [3d Dept 2026]; People v Mahood , 238 AD3d 1433 , 1434 [3d Dept 2025], lv denied 44 NY3d 983 [2025]; People v Taylor , 194 AD3d 1264, 1265 [3d Dept 2021], lv denied 37 NY3d 975 [2021]), and the narrow exception to the preservation requirement was not triggered here because the record does not

2025According to the majority, "[w]here a sentence is fundamentally unjust and all other safeguards have failed, [the Appellate Division is] compelled to exercise [its] constitutionalized interest of justice power to correct the injustice, no matter the validity of the appeal waiver." The majority seems to want to limit invocation of the exception to those appeals involving "unique circumstances" where the sentence would be " 'unjust in its relation to the crime of which the defendant stands convicted' " (majority mem, quoting People v Miles , 173 App Div 179, 185 [3d Dept 1916]; see Lopez , 6 NY3

2025Consequently, we need not address the validity of the appeal waiver ( see People v Morse , 233 AD3d 1470, 1470 [4th Dept 2024]; People v Morrison , 216 AD3d 1430, 1431 [4th Dept 2023], lv denied 40 NY3d 935 [2023]).

2025Consequently, we need not address the validity of the appeal waiver ( see People v Morse , 233 AD3d 1470 , 1470 [4th Dept 2024]; People v Morrison , 216 AD3d 1430, 1431 [4th Dept 2023], lv denied 40 NY3d 935 [2023]).

2025Defendant's challenge to the legality of the resentence was rendered moot inasmuch as he has served the sentence in its entirety ( see People v Dennis , 179 AD3d 1451, 1451 [4th Dept 2020]; People v John , 288 AD2d 848, 850 [4th Dept 2001], lv denied 97 NY2d 705 [2002]; People v Dukes , 156 AD2d 959, 960 [4th Dept 1989], lv denied 75 NY2d 918 [1990]), and we conclude that the exception to the mootness doctrine does not apply ( see Matter of Hearst Corp. v Clyne , 50 NY2d 707, 714-715 [1980]) and therefore dismiss the appeal to that extent.

2025Defendant's challenge to the legality of the resentence was rendered moot inasmuch as he has served the sentence in its entirety ( see People v Dennis , 179 AD3d 1451, 1451 [4th Dept 2020]; People v John , 288 AD2d 848, 850 [4th Dept 2001], lv denied 97 NY2d 705 [2002]; People v Dukes , 156 AD2d 959 , 960 [4th Dept 1989], lv denied 75 NY2d 918 [1990]), and we conclude that the exception to the mootness doctrine does not apply ( see Matter of Hearst Corp. v Clyne , 50 NY2d 707, 714-715 [1980]) and therefore dismiss the appeal to that extent.

2025Defendant's challenge to the three-year period of postrelease supervision imposed on the record during the sentencing hearing is not precluded by the appeal waiver since it implicates the legality of the sentence ( see People v Robertson , 46 AD3d 928, 929 [3d Dept 2007], lv denied 10 NY3d 844 [2008]).

2025Defendant's challenge to the legality of the resentence was rendered moot inasmuch as he has served the sentence in its entirety ( see People v Dennis , 179 AD3d 1451, 1451 [4th Dept 2020]; People v John , 288 AD2d 848, 850 [4th Dept 2001], lv denied 97 NY2d 705 [2002]; People v Dukes , 156 AD2d 959, 960 [4th Dept 1989], lv denied 75 NY2d 918 [1990]), and we conclude that the exception to the mootness doctrine does not apply ( see Matter of Hearst Corp. v Clyne , 50 NY2d 707, 714-715 [1980]) and therefore dismiss the appeal to that extent.

2025Defendant's challenge to the legality of the resentence was rendered moot inasmuch as he has served the sentence in its entirety ( see People v Dennis , 179 AD3d 1451, 1451 [4th Dept 2020]; People v John , 288 AD2d 848, 850 [4th Dept 2001], lv denied 97 NY2d 705 [2002]; People v Dukes , 156 AD2d 959 , 960 [4th Dept 1989], lv denied 75 NY2d 918 [1990]), and we conclude that the exception to the mootness doctrine does not apply ( see Matter of Hearst Corp. v Clyne , 50 NY2d 707, 714-715 [1980]) and therefore dismiss the appeal to that extent.

2025Defendant's assertion that the oral colloquy was defective because it omitted certain information contained in the model colloquy regarding the appellate process is without merit inasmuch as "there is no mandatory litany that must be used in order to obtain a valid waiver of appellate rights" ( People v Johnson , 14 NY3d 483, 486 [2010]; see Thomas , 34 NY3d at 563; People v Correia , 240 AD3d 1440, 1441 [4th Dept 2025]).

2025Defendant's assertion that the oral colloquy was defective because it omitted certain information contained in the model colloquy regarding the appellate process is without merit inasmuch as "there is no mandatory litany that must be used in order to obtain a valid waiver of appellate rights" ( People v Johnson , 14 NY3d 483, 486 [2010]; see Thomas , 34 NY3d at 563; People v Correia , 240 AD3d 1440, 1441 [4th Dept 2025]).

2025Defendant's challenge to the legality of the resentence was rendered moot inasmuch as he has served the sentence in its entirety ( see People v Dennis , 179 AD3d 1451, 1451 [4th Dept 2020]; People v John , 288 AD2d 848, 850 [4th Dept 2001], lv denied 97 NY2d 705 [2002]; People v Dukes , 156 AD2d 959, 960 [4th Dept 1989], lv denied 75 NY2d 918 [1990]), and we conclude that the exception to the mootness doctrine does not apply ( see Matter of Hearst Corp. v Clyne , 50 NY2d 707, 714-715 [1980]) and therefore dismiss the appeal to that extent.

2025Defendant's challenge to the legality of the resentence was rendered moot inasmuch as he has served the sentence in its entirety ( see People v Dennis , 179 AD3d 1451, 1451 [4th Dept 2020]; People v John , 288 AD2d 848, 850 [4th Dept 2001], lv denied 97 NY2d 705 [2002]; People v Dukes , 156 AD2d 959 , 960 [4th Dept 1989], lv denied 75 NY2d 918 [1990]), and we conclude that the exception to the mootness doctrine does not apply ( see Matter of Hearst Corp. v Clyne , 50 NY2d 707, 714-715 [1980]) and therefore dismiss the appeal to that extent.

2022Given the validity of the appeal waiver, defendant's challenge to the severity of her sentence is precluded ( see People v Lapoint , 201 AD3d 1258, 1258 [2022], lv denied 38 NY3d 1258 [2022]; People v Carter , 200 AD3d 1312, 1313 [2021]).