knowing and voluntary waiver in New York

2025That is to say, all of the relevant facts and circumstances must reveal a knowing and voluntary waiver ( see Thomas , 34 NY3d at 563; People v Lopez , 6 NY3d 248, 256 [2006]).

2015We note as an initial matter that, contrary to the People’s contention, defendant’s “purported waiver of the right to appeal is not valid inasmuch as County Court failed to obtain a knowing and voluntary waiver of that right at the time of the plea, and instead obtained the purported waiver at sentencing” (.People v Pieper, 104 AD3d 1225, 1225 [2013]; see generally People v Lopez, 6 NY3d 248, 256 [2006]).

2015We note as an initial matter that, contrary to the People’s contention, defendant’s “purported waiver of the right to appeal is not valid inasmuch as County Court failed to obtain a knowing and voluntary waiver of that right at the time of the plea, and instead obtained the purported waiver at sentencing” (.People v Pieper, 104 AD3d 1225, 1225 [2013]; see generally People v Lopez, 6 NY3d 248, 256 [2006]).

2015We note as an initial matter that, contrary to the People’s contention, defendant’s “purported waiver of the right to appeal is not valid inasmuch as County Court failed to obtain a knowing and voluntary waiver of that right at the time of the plea, and instead obtained the purported waiver at sentencing” (.People v Pieper, 104 AD3d 1225, 1225 [2013]; see generally People v Lopez, 6 NY3d 248, 256 [2006]).

2019We agree inasmuch as "the purported waiver was obtained at sentencing, and there is no indication that Supreme Court obtained a knowing and voluntary waiver of that right at the time of the plea" ( People v Sims , 129 AD3d 1509, 1510 [4th Dept 2015], lv denied 26 NY3d 935 [2015]).

2017Contrary to the People’s contention, the written waiver of the right to appeal, which was not signed until sentencing, does not serve to validate the otherwise inadequate oral waiver where, as here, “there is no indication that [the court] obtained a knowing and voluntary waiver of that right at the time of the plea” (People v Sims, 129 AD3d 1509, 1510 [2015], lv denied 26 NY3d 935 [2015]; see People v Lawson [appeal No. 7], 124 AD3d 1249, 1250 [2015]).

2018Where, as here, a written waiver of the right to appeal is executed by the defendant, "a knowing and voluntary waiver cannot be inferred from a silent record" ( People v Callahan , 80 NY2d 273, 283 ; see People v Brown , 122 AD3d 133, 138 ).

2012“While there is no requirement that the trial court engage in any particular litany in order to satisfy itself that these standards have been met, a knowing and voluntary waiver cannot be inferred from a silent record” (People v Callahan, 80 NY2d at 283 ).

2022As defendant contends and the People correctly concede, defendant's purported waiver of the right to appeal is invalid inasmuch as County Court failed to fully explain the waiver to defendant until the time of his restitution hearing, which took place approximately two months after he completed the plea proceeding ( see People v Mobayed , 158 AD3d 1221 , 1222 [4th Dept 2018], lv denied 31 NY3d 1015 [2018]; see generally People v Bradshaw , 18 NY3d 257, 265 [2011]). "[T]o the extent that the purported waiver of the right to appeal was obtained at [the restitution hearing], it is not valid inasm

2014In other words, a written waiver is not a complete substitute for a proper colloquy supervised by the trial judge (see People v Keiser, 100 AD3d 927, 928 [2012]; People v Bradshaw, 76 AD3d 566 , 569 [2010], affd 18 NY3d 257 [2011]; see generally People v Elmer, 19 NY3d 501, 510 [2012]; People v Callahan, 80 NY2d at 283).

2017Contrary to the People’s contention, the written waiver of the right to appeal, which was not signed until sentencing, does not serve to validate the otherwise inadequate oral waiver where, as here, “there is no indication that [the court] obtained a knowing and voluntary waiver of that right at the time of the plea” (People v Sims, 129 AD3d 1509, 1510 [2015], lv denied 26 NY3d 935 [2015]; see People v Lawson [appeal No. 7], 124 AD3d 1249, 1250 [2015]).

2017Contrary to the People’s contention, the written waiver of the right to appeal, which was not signed until sentencing, does not serve to validate the otherwise inadequate oral waiver where, as here, “there is no indication that [the court] obtained a knowing and voluntary waiver of that right at the time of the plea” (People v Sims, 129 AD3d 1509, 1510 [2015], lv denied 26 NY3d 935 [2015]; see People v Lawson [appeal No. 7], 124 AD3d 1249, 1250 [2015]).

2015We nonetheless reject defendant’s contention that the court erred in refusing to suppress his statements to the police. “[T]he record of the suppression hearing supports the court’s determination that the statements were not coerced, i.e., defendant received no promises in exchange for making the statements nor was he threatened in any way, and the court’s determination is entitled to great deference” (People v Peay, 77 AD3d 1309, 1310 [2010], lv denied 15 NY3d 955 [2010]; see People v Brown, 111 AD3d 1385 , 1386 [2013], lv denied 22 NY3d 1155 [2014]; see generally People v Prochilo, 41 NY2d 7

2015We nonetheless reject defendant’s contention that the court erred in refusing to suppress his statements to the police. “[T]he record of the suppression hearing supports the court’s determination that the statements were not coerced, i.e., defendant received no promises in exchange for making the statements nor was he threatened in any way, and the court’s determination is entitled to great deference” (People v Peay, 77 AD3d 1309, 1310 [2010], lv denied 15 NY3d 955 [2010]; see People v Brown, 111 AD3d 1385 , 1386 [2013], lv denied 22 NY3d 1155 [2014]; see generally People v Prochilo, 41 NY2d 7

2014The investigator’s comments indicating that defendant might be permitted to participate in drug court if he confessed, and that it would benefit him to talk, did not constitute fundamentally unfair or deceptive practices that render defendant’s statements involuntary (see People v Wolfe, 103 AD3d 1031, 1035 [2013], lv denied 21 NY3d 1021 [2013]).

2014The investigator’s comments indicating that defendant might be permitted to participate in drug court if he confessed, and that it would benefit him to talk, did not constitute fundamentally unfair or deceptive practices that render defendant’s statements involuntary (see People v Wolfe, 103 AD3d 1031, 1035 [2013], lv denied 21 NY3d 1021 [2013]).

2026Contrary to defendant's contention, we conclude that the oral colloquy, together with the written waiver of the right to appeal, " 'was sufficient to support a knowing and voluntary waiver under the totality of the circumstances' " ( People v Jones , 239 AD3d 1475 , 1476 [4th Dept 2025]; see People v Hannah T ., 240 AD3d 1260 , 1261 [4th Dept 2025]; see generally People v Thomas , 34 NY3d 545 , 559-564 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]).

2026The oral colloquy, together with the written waiver, "was sufficient to support a knowing and voluntary waiver under the totality of the circumstances" ( People v Thomas , 34 NY3d 545 , 564 [2019], cert denied — US —, 140 S Ct 2634 [2020]; see People v Drake , 195 AD3d 1442, 1442 [4th Dept 2021], lv denied 37 NY3d 991 [2021], reconsideration denied 37 NY3d 1059 [2021]).

2015We nonetheless reject defendant’s contention that the court erred in refusing to suppress his statements to the police. “[T]he record of the suppression hearing supports the court’s determination that the statements were not coerced, i.e., defendant received no promises in exchange for making the statements nor was he threatened in any way, and the court’s determination is entitled to great deference” (People v Peay, 77 AD3d 1309, 1310 [2010], lv denied 15 NY3d 955 [2010]; see People v Brown, 111 AD3d 1385 , 1386 [2013], lv denied 22 NY3d 1155 [2014]; see generally People v Prochilo, 41 NY2d 7

2015We nonetheless reject defendant’s contention that the court erred in refusing to suppress his statements to the police. “[T]he record of the suppression hearing supports the court’s determination that the statements were not coerced, i.e., defendant received no promises in exchange for making the statements nor was he threatened in any way, and the court’s determination is entitled to great deference” (People v Peay, 77 AD3d 1309, 1310 [2010], lv denied 15 NY3d 955 [2010]; see People v Brown, 111 AD3d 1385 , 1386 [2013], lv denied 22 NY3d 1155 [2014]; see generally People v Prochilo, 41 NY2d 7

2026The oral colloquy, together with the written waiver, "was sufficient to support a knowing and voluntary waiver under the totality of the circumstances" ( People v Thomas , 34 NY3d 545 , 564 [2019], cert denied — US —, 140 S Ct 2634 [2020]; see People v Drake , 195 AD3d 1442, 1442 [4th Dept 2021], lv denied 37 NY3d 991 [2021], reconsideration denied 37 NY3d 1059 [2021]).

2025The oral colloquy, together with the written waiver, "was sufficient to support a knowing and voluntary waiver under the totality of the circumstances" ( People v Thomas , 34 NY3d 545 , 564 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]; see People v Drake , 195 AD3d 1442, 1442 [4th Dept 2021], lv denied 37 NY3d 991 [2021], reconsideration denied 37 NY3d 1059 [2021]).

2025Super. 1 , 261 A.3d 351 (2021) ("[W]hile the municipal court was justified in entering a plea of not guilty when the LLC failed to make an appearance by counsel in response to the complaint-summons . . . both the municipal and trial courts erred in conducting a trial in the LLC's absence without inquiring on the record to ascertain whether there was a knowing and voluntary waiver"); Vann v. Shilleh , 54 Cal. App. 3d 192 (1975) ("A corporation cannot represent itself in court, either in propria persona or through an officer or agent who is not an attorney").

2025Super. 1 , 261 A.3d 351 (2021) ("[W]hile the municipal court was justified in entering a plea of not guilty when the LLC failed to make an appearance by counsel in response to the complaint-summons . . . both the municipal and trial courts erred in conducting a trial in the LLC's absence without inquiring on the record to ascertain whether there was a knowing and voluntary waiver"); Vann v. Shilleh , 54 Cal. App. 3d 192 (1975) ("A corporation cannot represent itself in court, either in propria persona or through an officer or agent who is not an attorney").

1994Defendant’s plea allocution demonstrates a knowing and voluntary waiver of his right to appeal the conviction that was to be entered in his negotiated plea of guilty (see, People v Seaberg, 74 NY2d 1 ), which waiver included the negotiated sentence the court ultimately imposed (People v Allen, 82 NY2d 761 ).

1994Thus, it was not necessary for the court to inquire as to whether defendant made a knowing and voluntary waiver of these rights (People v Sea- berg, 74 NY2d 1, 11-12 ; People v Callahan, 80 NY2d 273, 283 ).

2007“While there is no requirement that the court engage in any particular litany ... a knowing and voluntary waiver cannot be inferred from a silent record” (id., citing People v Harris, 61 NY2d 9, 17 [1983]).

1992While there is no requirement that the trial court engage in any particular litany in order to satisfy itself that these standards have been met, a knowing and voluntary waiver cannot be inferred from a silent record (see, People v Harris, 61 NY2d 9, 17 , supra).

2025The following considerations inform the totality-of-the-circumstances inquiry: the nature and terms of the waiver; the age and background of the defendant; the defendant's consultation with counsel; the [*4]defendant's on-the-record acknowledgments of understanding the consequences of waiving the right to appeal; a written appeal waiver that supplements or clarifies the court's oral advice; and the defendant's experience, if any, with the criminal justice system ( Thomas , 34 NY3d at 559-560; Sanders , 25 NY3d at 340-341 ).

2020The record further reflects that the plea deal that defendant received was extremely favorable and defendant had substantial prior experience with the criminal justice system—both “relevant factors surrounding the waiver” bearing on “the experience and background of the accused” (Sanders, 25 NY3d at 341 ; see Thomas, 34 NY3d at 563 [“Our requisite analysis for determining the validity of the waiver remains focused on whether all the relevant circumstances reveal a knowing and voluntary waiver”]).

2022As defendant contends and the People correctly concede, defendant's purported waiver of the right to appeal is invalid inasmuch as County Court failed to fully explain the waiver to defendant until the time of his restitution hearing, which took place approximately two months after he completed the plea proceeding ( see People v Mobayed , 158 AD3d 1221 , 1222 [4th Dept 2018], lv denied 31 NY3d 1015 [2018]; see generally People v Bradshaw , 18 NY3d 257, 265 [2011]). "[T]o the extent that the purported waiver of the right to appeal was obtained at [the restitution hearing], it is not valid inasm

2018County Court failed to obtain a knowing and voluntary waiver of the right to appeal at the time of the plea ( see People v Brown , 148 AD3d 1562 , 1562-1563 [4th Dept 2017], lv denied 29 NY3d 1124 [2017]; People v Blackwell , 129 AD3d 1690, 1690 [4th Dept 2015], lv denied 26 NY3d 926 [2015]).

2022As defendant contends and the People correctly concede, defendant's purported waiver of the right to appeal is invalid inasmuch as County Court failed to fully explain the waiver to defendant until the time of his restitution hearing, which took place approximately two months after he completed the plea proceeding ( see People v Mobayed , 158 AD3d 1221 , 1222 [4th Dept 2018], lv denied 31 NY3d 1015 [2018]; see generally People v Bradshaw , 18 NY3d 257, 265 [2011]). "[T]o the extent that the purported waiver of the right to appeal was obtained at [the restitution hearing], it is not valid inasm

2018County Court failed to obtain a knowing and voluntary waiver of the right to appeal at the time of the plea ( see People v Brown , 148 AD3d 1562 , 1562-1563 [4th Dept 2017], lv denied 29 NY3d 1124 [2017]; People v Blackwell , 129 AD3d 1690, 1690 [4th Dept 2015], lv denied 26 NY3d 926 [2015]).

2019We excused the “ambiguity” in that colloquy under the circumstances, which included a written waiver form evidencing that the defendant was advised of the appellate process and the waiver by defense counsel and defendant’s on-the-record acknowledgement that he understood the rights he was waiving – all of which together sufficiently established a knowing and voluntary waiver ( 7 NY3d at 738 ). 4 Judge Wilson concludes that the required separation between the court’s allocution for the waiver of Boykin rights and the allocution for the appeal waiver means that the appeal waiver is not one of th

2011The record establishes that the court instructed defendant to execute a written waiver of the right to appeal and that defendant did as instructed, but there was no colloquy between the court and defendant regarding the waiver (see id.; cf. People v Ramos, 7 NY3d 737, 738 [2006]).

2020We agree with defendant that his waiver of the right to appeal is invalid inasmuch as there is no indication that the court obtained a knowing and voluntary waiver of that right at the time defendant entered the plea ( see People v Carroll , 148 AD3d 1546, 1546-1547 [4th Dept 2017], lv denied 29 NY3d 1077 [2017]).

2017Moreover, the colloquy concerning the waiver of the right to appeal, which was immediately preceded by a colloquy concerning the rights automatically forfeited by a guilty plea, conflated the right to appeal with the rights forfeited by a guilty plea (cf. Massey, 149 AD3d at 1525 ). “[T]he written waiver of the right to appeal, which was not signed until sentencing, does not serve to validate the otherwise inadequate oral waiver where, as here, ‘there is no indication that [the court] obtained a knowing and voluntary waiver of that right at the time of the plea’ ” (Carroll, 148 AD3d at 1546-15

2019The role played by counsel in ensuring a defendant’s knowing and voluntary waiver is an important component of that analysis that cannot be ignored (see 22 NYCRR 606.5 [1st Dept]; 22 NYCRR 671.3 [2d Dept]; 22 NYCRR 821.2 [3d Dept]; 22 NYCRR - 12 - - 13 - Nos. 87, 88, 89 1015.7 [4th Dept]; Moissett, 76 NY2d at 911 ).

2019Each defendant was represented by counsel and confirmed on the record that he or she had an adequate opportunity to discuss the waiver with defense counsel (see Moissett, 76 NY2d at 911 ; majority op at 12-13 [“The role played by counsel in ensuring a defendant’s knowing and voluntary waiver is an important component of that analysis that cannot be ignored”]).

2017As an alternative to a personal appearance in court, a respondent may participate in such a colloquy via video conferencing (see id. at 36 ; Matter of State of New York v Robert C., 113 AD3d 937 [2014]).

2016A person who is the subject of a Mental Hygiene Law article 10 petition may validly waive a trial as to the existence of a “mental abnormality” where an on-the-record colloquy shows that the person made a knowing and voluntary waiver of such right, after an opportunity for consultation with his or her attorney (see Mental Hygiene Law §§ 10.07 [b]; 10.08 [f]; see also Matter of State of New York v Ted B., 132 AD3d 28, 37-38 [2015]; Matter of State of New York v Robert C., 113 AD3d 937, 939-940 [2014]).

2017However, in Matter of State of New York v Ted B. ( 132 AD3d 28 [2015]), we held that a respondent in a Mental Hygiene article 10 proceeding may validly waive the right to a jury trial only where an on-the-record colloquy shows that the respondent made a knowing and voluntary waiver of such right, after an opportunity for consultation with his or her attorney.

2016A person who is the subject of a Mental Hygiene Law article 10 petition may validly waive a trial as to the existence of a “mental abnormality” where an on-the-record colloquy shows that the person made a knowing and voluntary waiver of such right, after an opportunity for consultation with his or her attorney (see Mental Hygiene Law §§ 10.07 [b]; 10.08 [f]; see also Matter of State of New York v Ted B., 132 AD3d 28, 37-38 [2015]; Matter of State of New York v Robert C., 113 AD3d 937, 939-940 [2014]).