consequences waiver in New York

2021However, a waiver of the right to appeal is [*2]effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily, which occurs when a defendant has a full appreciation of the consequences of such waiver ( see People v Bradshaw , 18 NY3d 257, 264 [2011]; Lopez , 6 NY3d at 256 ; Brown , 122 AD3d at 136 ) and the fact that this waiver is separate and distinct from those trial rights automatically forfeited upon a plea of guilty ( see People v Leach , 26 NY3d 1154 [2016]; Lopez , 6 NY3d at 256 ).

2020The record demonstrates that the defendant had a full appreciation of the consequences of the waiver, and understood that the appeal waiver was separate and distinct from those rights automatically forfeited upon his pleas of guilty ( see People v Sanders , 25 NY3d 337, 340 ; People v Bradshaw , 18 NY3d 257, 264 ; People v Lopez , 6 NY3d at 256 ; People v Rodriguez, 176 AD3d 1111 ; People v Cottell , 172 AD3d 1223 , 1223).

2024Thus, the record does not demonstrate that defendant had a full appreciation of the consequences of the waiver ( see People v Lopez , 6 NY3d 248, 256 [2006]; People v Thorne , 207 AD3d 73 , 77 [1st Dept 2022]).

2022County Court then advised defendant of his right to appeal and emphasized that a waiver of the right to appeal was a separate and distinct requirement of the plea agreement, explaining the consequences of the waiver and distinguishing it from the trial-related rights defendant would be automatically forfeiting by his guilty plea ( see People v Lopez , 6 NY3d 248, 256 [2006]; People v Hemingway , 192 AD3d 1266, 1266 [2021], lvs denied 37 NY3d 956 , 960 [2021]).

2018We thus conclude that, "despite defendant's execution of a written waiver of the right to appeal, he did not knowingly, intelligently or voluntarily waive his right to appeal as the record fails to demonstrate a full appreciation of the consequences of such waiver" ( People v Elmer , 19 NY3d 501, 510 [2012] [internal quotation marks omitted]).

2018We thus conclude that, "despite defendant's execution of a written waiver of the right to appeal, he did not knowingly, intelligently or voluntarily waive his right to appeal as the record fails to demonstrate a full appreciation of the consequences of such waiver" ( People v Elmer , 19 NY3d 501, 510 [2012] [internal quotation marks omitted]).

2025Defendant confirmed that he had a full opportunity to discuss his appellate rights with counsel, his questions had been answered and he had no further questions of the court and understood his appellate rights and the consequences of the waiver ( see People v Thomas[*4] , 34 NY3d at 560; People v Ramos , 7 NY3d 737, 738 [2006]).

2008Moreover, even if, as defendant contends, County Court’s colloquy regarding the waiver was ambiguous, as defendant executed a written waiver that explained the appellate process and confirmed that defense counsel advised defendant of his right to appeal and informed him of the consequences of a waiver of that right, his waiver was knowingly and voluntarily executed (see People v Ramos, 7 NY3d 737, 738 [2006]; People v Ramirez, 42 AD3d 671, 671-672 [2007]).

2020The record demonstrates that the defendant had a full appreciation of the consequences of the waiver, and understood that the appeal waiver was separate and distinct from those rights automatically forfeited upon his pleas of guilty ( see People v Sanders , 25 NY3d 337, 340 ; People v Bradshaw , 18 NY3d 257, 264 ; People v Lopez , 6 NY3d at 256 ; People v Rodriguez, 176 AD3d 1111 ; People v Cottell , 172 AD3d 1223 , 1223).

2018"An appellate waiver meets this standard when a defendant has a full appreciation of the consequences of such waiver" ( People v Bradshaw, 18 NY3d at 264 [internal quotation marks omitted]; see People v Sanders, 25 NY3d 337 ; People v Brown, 122 AD3d at 136 ). "[F]actors individual to each defendant, such as the defendant's age, experience and background,' may be relevant in assessing the validity of a particular appeal waiver" ( People v Brown, 122 AD3d at 138 , quoting People v Bradshaw, 18 NY3d at 264-265 ; see People v Sanders, 25 NY3d 337 ).

2016Accordingly, “despite [the] defendant’s execution of a written waiver of the right to appeal, he did not knowingly, intelligently or voluntarily waive his right to appeal as the record fails to demonstrate a Tull appreciation of the consequences of such waiver’ ” (People v Elmer, 19 NY3d 501, 510 [2012], quoting People v Bradshaw, 18 NY3d 257, 264 [2011]; see People v Callahan, 80 NY2d 273, 283 [1992]; People v Gordon, 127 AD3d at 1231 ).

2015Accordingly, “despite [the] defendant’s execution of a written waiver of the right to appeal, he did not knowingly, intelligently or voluntarily waive his right to appeal as the record fails to demonstrate a ‘full appreciation of the consequences of such waiver’ ” (People v Elmer, 19 NY3d 501, 510 [2012], quoting People v Bradshaw, 18 NY3d 257, 264 [2011]; see People v Callahan, 80 NY2d 273, 283 [1992]; People v Cantarero, 123 AD3d at 841 ; People v Brown, 122 AD3d at 145 ; People v Vasquez, 101 AD3d 1054, 1054-1055 [2012]).

2014Thus, defendant was not fully informed of the consequences of the waiver (compare People v Lindsey, 93 AD3d 1040 [2012], lv denied 19 NY3d 998 [2012]; People v Ramirez, 42 AD3d 671, 671-672 [2007]).

2014Thus, defendant was not fully informed of the consequences of the waiver (compare People v Lindsey, 93 AD3d 1040 [2012], lv denied 19 NY3d 998 [2012]; People v Ramirez, 42 AD3d 671, 671-672 [2007]).

2013Turning to defendant’s challenge to the voluntariness of his guilty plea, we find this claim to be unpreserved inasmuch as the record before us does not reflect that defendant moved to withdraw his plea or vacate the judgment of conviction (see People v Santana, 95 AD3d 1503, 1503-1504 [2012]).

2013Turning to defendant’s challenge to the voluntariness of his guilty plea, we find this claim to be unpreserved inasmuch as the record before us does not reflect that defendant moved to withdraw his plea or vacate the judgment of conviction (see People v Santana, 95 AD3d 1503, 1503-1504 [2012]).

2010Under these circumstances, we find the appeal waiver to be valid (see People v Ramos, 7 NY3d 737, 738 [2006]; People v Gilmour, 61 AD3d at 1123 ; People v Fludd, 33 AD3d 1124, 1125 [2006], lv denied 9 NY3d 843 [2007]).

2008Defendant also executed, a detailed written appeal waiver in open court, which explained the appellate process, reflected that counsel had fully advised him of the consequences of the waiver and stated that he was waiving his right to appeal voluntarily (see People v Ramos, 7 NY3d 737, 738 [2006]; People v Lewis, 48 AD3d 880, 881 [2008]; People v Fludd, 33 AD3d 1124,1125 [2006], lv denied 9 NY3d 843 [2007]).

2021However, a waiver of the right to appeal is [*2]effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily, which occurs when a defendant has a full appreciation of the consequences of such waiver ( see People v Bradshaw , 18 NY3d 257, 264 [2011]; Lopez , 6 NY3d at 256 ; Brown , 122 AD3d at 136 ) and the fact that this waiver is separate and distinct from those trial rights automatically forfeited upon a plea of guilty ( see People v Leach , 26 NY3d 1154 [2016]; Lopez , 6 NY3d at 256 ).

2020An appeal waiver is made knowingly, intelligently, and voluntarily where "a defendant has a full appreciation of the consequences of such waiver" ( People v Brown , 122 AD3d 133, 136 [internal quotation marks omitted]).

2019The defendant's valid waiver of his right to appeal forecloses appellate review of his challenge to the hearing court's suppression determination ( see People v Kemp , 94 NY2d 831, 833 ).

2017Given defendant’s valid appeal waiver, his challenge to County Court’s adverse suppression decision and the denial of a hearing is precluded (see People v Sanders, 25 NY3d at 342 ; People v Kemp, 94 NY2d 831, 833 [1999]; People v Payne, 148 AD3d 1226, 1227 [2017], lv denied 29 NY3d 1084 [2017]).

2017As defendant’s understanding of the waiver is established on the record, his sole contention on appeal, that the sentence is unduly harsh, is precluded (see People v Lopez, 6 NY3d at 255-256 ; People v Mann, 140 AD3d 1532, 1533 [2016]; cf. People v Bradshaw, 18 NY3d 257, 266-267 [2011]).

2017As defendant’s understanding of the waiver is established on the record, his sole contention on appeal, that the sentence is unduly harsh, is precluded (see People v Lopez, 6 NY3d at 255-256 ; People v Mann, 140 AD3d 1532, 1533 [2016]; cf. People v Bradshaw, 18 NY3d 257, 266-267 [2011]).

2015The record reveals that County Court adequately explained the consequences of the waiver of the right to appeal and distinguished that right from the other rights he was giving up as a consequence of his plea (see People v Campbell, 114 AD3d 996, 997 [2014]).

2015Defendant thereafter affirmed his understanding of the waiver and executed a counseled written waiver (see People v Chavis, 117 AD3d 1193, 1193-1194 [2014]; People v Campbell, 114 AD3d 996, 997 [2014]).

2014Moreover, County Court properly advised defendant that his waiver of the right to appeal was separate and distinct from the other rights that he was forfeiting by pleading guilty (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Fate, 117 AD3d 1327, 1328 [2014]).

2014Moreover, County Court properly advised defendant that his waiver of the right to appeal was separate and distinct from the other rights that he was forfeiting by pleading guilty (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Fate, 117 AD3d 1327, 1328 [2014]).

2019The record shows that the defendant had a full appreciation of the consequences of the waiver, and understood that the appeal waiver was separate and distinct from those rights automatically forfeited upon his plea of guilty ( see People v Bradshaw , 18 NY3d 257, 264 ; People v Lopez , 6 NY3d 248, 256 ; People v Seaberg , 74 NY2d 1, 11 ; People v Batista , 167 AD3d 69 , 73).

2019Although the defendant signed a written waiver of his right to appeal, the record does not demonstrate that he had a full appreciation of the consequences of the waiver ( see People v Seaberg , 74 NY2d 1, 11 ; People v Reyes , 116 AD3d 798 ), as the Supreme Court's brief colloquy failed to sufficiently advise him of the nature of the right to appeal and the consequences of waiving it ( see People v Guarchaj , 122 AD3d 878 ; People v Brown , 122 AD3d 133, 140 ).

2018We agree with defendant that the brief inquiry by County Court (Drago, J.) regarding his understanding of the waiver of the right to appeal was insufficient to establish that defendant appreciated the consequences of the waiver ( see People v Davis , 136 AD3d 1220, 1221 [2016], lv denied 27 NY3d 1068 [2016]; People v Ashlaw , 126 AD3d 1236, 1237 [2015]).

2016Accordingly, we are unable to conclude that defendant appreciated the consequences of the waiver (see People v Elmer, 19 NY3d 501, 510 [2012]; People v Rabideau, 130 AD3d 1094, 1094-1095 [2015]; People v Ashlaw, 126 AD3d at 1237 ; People v Vences, 125 AD3d 1050, 1051-1052 [2015]).

2016Contrary to defendant’s contention, the record establishes that the valid waiver of the right to appeal “was intended comprehensively to cover all aspects of the case” (People v Burley, 136 AD3d 1404, 1404 [2016], lv denied 27 NY3d 993 [2016] [internal quotation marks omitted]), and therefore encompasses defendant’s challenge to the court’s suppression ruling (see People v Sanders, 25 NY3d 337, 342 [2015]; People v Kemp, 94 NY2d 831, 833 [1999]).

2016Contrary to defendant’s contention, the record establishes that the valid waiver of the right to appeal “was intended comprehensively to cover all aspects of the case” (People v Burley, 136 AD3d 1404, 1404 [2016], lv denied 27 NY3d 993 [2016] [internal quotation marks omitted]), and therefore encompasses defendant’s challenge to the court’s suppression ruling (see People v Sanders, 25 NY3d 337, 342 [2015]; People v Kemp, 94 NY2d 831, 833 [1999]).

2016Supreme Court “thoroughly reviewed the consequences of the waiver with defendant, after which defendant indicated that [she] understood those consequences and orally waived [her] right to appeal” (People v Abernathy, 136 AD3d 1276, 1276 [2016], lv denied 27 NY3d 1127 [2016]).

2016Supreme Court “thoroughly reviewed the consequences of the waiver with defendant, after which defendant indicated that [she] understood those consequences and orally waived [her] right to appeal” (People v Abernathy, 136 AD3d 1276, 1276 [2016], lv denied 27 NY3d 1127 [2016]).

2015Furthermore, the court did not advise defendant that the waiver included a challenge to the severity of the sentence (see People v Maracle, 19 NY3d 925, 928 [2012]; People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]).

2015Furthermore, the court did not advise defendant that the waiver included a challenge to the severity of the sentence (see People v Maracle, 19 NY3d 925, 928 [2012]; People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]).

2015Furthermore, the court did not advise defendant that the waiver included a challenge to the severity of the sentence (see People v Maracle, 19 NY3d 925, 928 [2012]; People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]).

2015Furthermore, the court did not advise defendant that the waiver included a challenge to the severity of the sentence (see People v Maracle, 19 NY3d 925, 928 [2012]; People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]).

2025People v Bryant , 28 NY3d 1094, 1096 [2016]; People v Nunez , 220 AD3d 597, 598 [1st Dept 2023], lv denied 41 NY3d 1004 [2024]), where, as here, "the record demonstrates that defendant had a full appreciation of the consequences of the waiver and that the waiver was voluntary under the totality of the circumstances" ( People v Cassanova , 234 AD3d 622 [1st Dept 2025] [internal quotation marks omitted]; see People v Castillo , 226 AD3d 573, 574 [1st Dept 2024], lv denied 41 NY3d 1017 [2024]).

2025People v Bryant , 28 NY3d 1094, 1096 [2016]; People v Nunez , 220 AD3d 597 , 598 [1st Dept 2023], lv denied 41 NY3d 1004 [2024]), where, as here, "the record demonstrates that defendant had a full appreciation of the consequences of the waiver and that the waiver was voluntary under the totality of the circumstances" ( People v Cassanova , 234 AD3d 622 [1st Dept 2025] [internal quotation marks omitted]; see People v Castillo , 226 AD3d 573 , 574 [1st Dept 2024], lv denied 41 NY3d 1017 [2024]).