oral waiver in New York

2026Contrary to defendant's assertion, " '[t]he fact that the appeal waiver was not reduced to writing is of no moment where, as here, the oral waiver was adequate' " ( People v Rohadfox , 175 AD3d 1813 , 1814 [4th Dept 2019], lv denied 34 NY3d 1019 [2019]; see People v Lopez , 6 NY3d 248, 257 [2006]; People v Thomas , 237 AD3d 1557 , 1558 [4th Dept 2025], lv denied 43 NY3d 1059 [2025]).

2025Any deficiency by the court in ascertaining on the record defendant's understanding of the contents of the written waiver ( see Thomas , 34 NY3d at 563, 566; People v Bradshaw , 18 NY3d 257, 266-267 [2011]; see also People v Lomax , 161 AD3d 1454 , 1455 [3d Dept 2018], lv denied 32 NY3d 1113 [2018]) is of no moment where, as here, the oral waiver was adequate ( see Lopez , 6 NY3d at 257 ; People v Witherow , 203 AD3d 1595 , 1595-1596 [4th Dept 2022]; People v Thomas , 178 AD3d 1461 , 1461 [4th Dept 2019], lv denied 35 NY3d 945 [2020]).

2025Any deficiency by the court in ascertaining on the record defendant's understanding of the contents of the written waiver ( see Thomas , 34 NY3d at 563, 566; People v Bradshaw , 18 NY3d 257, 266-267 [2011]; see also People v Lomax , 161 AD3d 1454 , 1455 [3d Dept 2018], lv denied 32 NY3d 1113 [2018]) is of no moment where, as here, the oral waiver was adequate ( see Lopez , 6 NY3d at 257 ; People v Witherow , 203 AD3d 1595 , 1595-1596 [4th Dept 2022]; People v Thomas , 178 AD3d 1461 , 1461 [4th Dept 2019], lv denied 35 NY3d 945 [2020]).

2024Any deficiency by the court in ascertaining on the record defendant's understanding of the contents of the written waiver ( see [*2]Thomas , 34 NY3d at 563, 566; People v Bradshaw , 18 NY3d 257, 266-267 [2011]; People v Callahan , 80 NY2d 273, 283 [1992]) is of no moment where, as here, the oral waiver was adequate ( see Lopez , 6 NY3d at 257 ; People v Witherow , 203 AD3d 1595 , 1595-1596 [4th Dept 2022]; People v Thomas , 178 AD3d 1461 , 1461 [4th Dept 2019], lv denied 35 NY3d 945 [2020]; People v Smith , 164 AD3d 1621 , 1621 [4th Dept 2018], lv denied 32 NY3d 1177 [2019]).

2026Defendant's valid waiver of the right to appeal encompasses his challenge to the severity of the sentence ( see People v Lopez , 6 NY3d 248, 256 [2006]; People v Hidalgo , 91 NY2d 733, 737 [1998]).

2020The record establishes that the oral waiver, together with the written waiver of the right to appeal, was knowing, intelligent, and voluntary ( see People v Thomas , 34 NY3d 545 , 560-563 [2019]; People v Lopez , 6 NY3d 248, 256 [2006]), and that valid waiver forecloses his challenge to the severity of the sentence ( see Lopez , 6 NY3d at 255 ; People v Hidalgo , 91 NY2d 733, 737 [1998]).

2025Here, the oral waiver colloquy, which followed the appropriate model colloquy, establishes that defendant knowingly, voluntarily, and intelligently waived his right to appeal ( see People v Linda R.M. , 236 AD3d 1488 , 1488 [4th Dept 2025]; People v Smith , 164 AD3d 1621 , 1621 [4th Dept 2018], lv denied 32 NY3d 1177 [2019]; see generally People v Thomas , 34 NY3d 545 , 559-564 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]).

2025Here, the oral waiver colloquy, which followed the appropriate model colloquy, establishes that defendant knowingly, voluntarily, and intelligently waived his right to appeal ( see People v Linda R.M. , 236 AD3d 1488 , 1488 [4th Dept 2025]; People v Smith , 164 AD3d 1621 , 1621 [4th Dept 2018], lv denied 32 NY3d 1177 [2019]; see generally People v Thomas , 34 NY3d 545 , 559-564 [2019], cert denied — US —, 140 S Ct 2634 [2020]).

2025We conclude that defendant's waiver of the right to appeal forecloses our review of his challenge to the court's adverse suppression ruling ( see Thomas , 34 NY3d at 564-565; People v Sanders , 25 NY3d 337, 342 [2015]; People v Kemp , 94 NY2d 831, 833 [1999]; Rohadfox , 175 AD3d at 1814).

2025We conclude that defendant's waiver of the right to appeal forecloses our review of his challenge to the court's adverse suppression ruling ( see Thomas , 34 NY3d at 564-565; People v Sanders , 25 NY3d 337, 342 [2015]; People v Kemp , 94 NY2d 831, 833 [1999]; Rohadfox , 175 AD3d at 1814).

2017Although no mention was made on the record during the plea colloquy that defendant was waiving his right to appeal any issue concerning the severity of the sentence (see People v Peterson, 111 AD3d 1412, 1412 [2013]), here the oral waiver was accompanied by a written plea agreement that provided that defendant was waiving his right to ap peal his “conviction, sentence, and any proceedings that may result from this prosecution.” Moreover, County Court conducted an extensive inquiry that established that defendant had reviewed and understood the written plea agreement, including its waiver-of-ap

2017Although no mention was made on the record during the plea colloquy that defendant was waiving his right to appeal any issue concerning the severity of the sentence (see People v Peterson, 111 AD3d 1412, 1412 [2013]), here the oral waiver was accompanied by a written plea agreement that provided that defendant was waiving his right to ap peal his “conviction, sentence, and any proceedings that may result from this prosecution.” Moreover, County Court conducted an extensive inquiry that established that defendant had reviewed and understood the written plea agreement, including its waiver-of-ap

2017Although no mention was made on the record during the plea colloquy that defendant was waiving his right to appeal any issue concerning the severity of the sentence (see People v Peterson, 111 AD3d 1412, 1412 [2013]), here the oral waiver was accompanied by a written plea agreement that provided that defendant was waiving his right to ap peal his “conviction, sentence, and any proceedings that may result from this prosecution.” Moreover, County Court conducted an extensive inquiry that established that defendant had reviewed and understood the written plea agreement, including its waiver-of-ap

2017Although no mention was made on the record during the plea colloquy that defendant was waiving his right to appeal any issue concerning the severity of the sentence (see People v Peterson, 111 AD3d 1412, 1412 [2013]), here the oral waiver was accompanied by a written plea agreement that provided that defendant was waiving his right to ap peal his “conviction, sentence, and any proceedings that may result from this prosecution.” Moreover, County Court conducted an extensive inquiry that established that defendant had reviewed and understood the written plea agreement, including its waiver-of-ap

2017Although no mention was made on the record during the plea colloquy that defendant was waiving his right to appeal any issue concerning the severity of the sentence (see People v Peterson, 111 AD3d 1412, 1412 [2013]), here the oral waiver was accompanied by a written plea agreement that provided that defendant was waiving his right to ap peal his “conviction, sentence, and any proceedings that may result from this prosecution.” Moreover, County Court conducted an extensive inquiry that established that defendant had reviewed and understood the written plea agreement, including its waiver-of-ap

2017Although no mention was made on the record during the plea colloquy that defendant was waiving his right to appeal any issue concerning the severity of the sentence (see People v Peterson, 111 AD3d 1412, 1412 [2013]), here the oral waiver was accompanied by a written plea agreement that provided that defendant was waiving his right to ap peal his “conviction, sentence, and any proceedings that may result from this prosecution.” Moreover, County Court conducted an extensive inquiry that established that defendant had reviewed and understood the written plea agreement, including its waiver-of-ap

2011Corp., 56 NY2d 175, 184 [1982]; cf. Southold Sav.

2004Corp., 56 NY2d 175, 180-181, 186 [1982] [distinguishing waiver from modification and citing Rose v Spa Realty Assoc., 42 NY2d 338, 343 (1977)]).

2024Any deficiency by the court in ascertaining on the record defendant's understanding of the contents of the written waiver ( see [*2]Thomas , 34 NY3d at 563, 566; People v Bradshaw , 18 NY3d 257, 266-267 [2011]; People v Callahan , 80 NY2d 273, 283 [1992]) is of no moment where, as here, the oral waiver was adequate ( see Lopez , 6 NY3d at 257 ; People v Witherow , 203 AD3d 1595 , 1595-1596 [4th Dept 2022]; People v Thomas , 178 AD3d 1461 , 1461 [4th Dept 2019], lv denied 35 NY3d 945 [2020]; People v Smith , 164 AD3d 1621 , 1621 [4th Dept 2018], lv denied 32 NY3d 1177 [2019]).

2018Furthermore, as the People also correctly concede, although the record indicates that defendant signed a written waiver, the written waiver was invalid inasmuch as there was "not even an attempt by the court to ascertain on the record an acknowledgment from defendant that he had, in fact, signed the waiver or that, if he had, he was aware of its contents" ( People v DeSimone , 80 NY2d 273, 283 [1992]).

2024As defendant contends and the People correctly concede, defendant's waiver of the right to appeal is invalid inasmuch as both the signed written waiver of the right to appeal and the oral waiver colloquy mischaracterized the nature of the right to appeal ( see People v Thomas , 34 NY3d 545 , 564-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]; People v Jones , 186 AD3d 1069, 1070 [4th Dept 2020]).

2021As an initial matter, we conclude that defendant's waiver of the right to appeal is invalid inasmuch as both the signed written waiver of the right to appeal and the oral waiver colloquy mischaracterized the nature of the right to appeal ( see People v Thomas , 34 NY3d 545 , 565-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]; People v Jones , 186 AD3d 1069, 1070 [4th Dept 2020]).

2024County Court explained that the waiver of appeal was part of defendant's plea agreement, advised defendant that the appeal waiver was separate and distinct from the other rights that she would be forfeiting by pleading guilty, referenced certain of the appellate issues that would survive the appeal waiver, ascertained that defendant had been afforded sufficient time to confer with counsel and elicited defendant's assurances that she understood the nature and extent of the waiver ( see id. ; People v Burke , 199 AD3d 1170, 1170-1171 [3d Dept 2021]).

2022However, "the lack of a valid written waiver is not fatal where, as here, the oral waiver colloquy is sufficient to demonstrate that the defendant knowingly, intelligently and voluntarily waived his or her right to appeal" (People v Burke, 199 AD3d 1170, 1171 [2021] [internal quotation marks and citation omitted]; see People v Brunson , 185 AD3d at 1300 ; People v Bonner , 182 AD3d 867, 867 [2020]).

1985It is well settled, in New York, that an oral waiver of the time for the sale of real property will be given effect (Bacchetta v Conforti, 108 Misc 2d 761 ; Royce v Rymkevitch, 29 AD2d 1029 ; 1A Warren’s Weed, New York Real Property, Contracts, § 28.03 [4th ed]). "[T]he Statute of Frauds is not applicable because of the doctrine of equitable estoppel” (Bacchetta v Conforti, supra, at p 762).

1985It is well settled, in New York, that an oral waiver of the time for the sale of real property will be given effect (Bacchetta v Conforti, 108 Misc 2d 761 ; Royce v Rymkevitch, 29 AD2d 1029 ; 1A Warren’s Weed, New York Real Property, Contracts, § 28.03 [4th ed]). "[T]he Statute of Frauds is not applicable because of the doctrine of equitable estoppel” (Bacchetta v Conforti, supra, at p 762).

2022However, "the lack of a valid written waiver is not fatal where, as here, the oral waiver colloquy is sufficient to demonstrate that the defendant knowingly, intelligently and voluntarily waived his or her right to appeal" (People v Burke, 199 AD3d 1170, 1171 [2021] [internal quotation marks and citation omitted]; see People v Brunson , 185 AD3d at 1300 ; People v Bonner , 182 AD3d 867, 867 [2020]).

2021Although the written appeal waivers executed by defendant — one following his guilty plea and the other at the time of sentencing — are invalid due to County Court's failure to ascertain whether defendant read the written waivers, discussed them with counsel or understood their contents ( see People v Brunson , 185 AD3d at 1300 ; People v Burnell , 183 AD3d 931, 932 [2020], lv denied 35 NY3d 1043 [2020]), the lack of a valid written waiver is not fatal "where, as here, the oral waiver colloquy is sufficient to demonstrate that the defendant knowingly, intelligently and voluntarily waived his o

2022Defendant's contention that she received the ineffective assistance of counsel — to the extent it impacts upon the voluntariness of her plea — survives the appeal waiver but is unpreserved for our review in the absence of an appropriate postallocution motion ( see People v Nack , 200 AD3d 1197, 1198 [2021], lv denied 38 NY3d 1009 [2022]; [*2] People v Downs , 194 AD3d 1118, 1119 [2021], lv denied 37 NY3d 971 [2021]), and the narrow exception to the preservation rule was not triggered ( see People v Johnson , 194 AD3d 1267, 1269 [2021]; People v Stanley , 189 AD3d 1818, 1818 [2020]).

2021Defendant's ineffective assistance [*2]of counsel claim — to the extent that it impacts upon the voluntariness of his plea — survives the valid appeal waiver but is unpreserved for our review absent an appropriate postallocution motion ( see People v Guerrero , 194 AD3d 1258, 1261 [2021], lv denied 37 NY3d 992 [2021]; People v Stanley , 189 AD3d 1818, 1818 [2020]), and the narrow exception to the preservation rule was not triggered ( see People v Stanley , 189 AD3d at 1818 ).

2022However, "the lack of a valid written waiver is not fatal where, as here, the oral waiver colloquy is sufficient to demonstrate that the defendant knowingly, intelligently and voluntarily waived his or her right to appeal" (People v Burke, 199 AD3d 1170, 1171 [2021] [internal quotation marks and citation omitted]; see People v Brunson , 185 AD3d at 1300 ; People v Bonner , 182 AD3d 867, 867 [2020]).

2021Although the written appeal waivers executed by defendant — one following his guilty plea and the other at the time of sentencing — are invalid due to County Court's failure to ascertain whether defendant read the written waivers, discussed them with counsel or understood their contents ( see People v Brunson , 185 AD3d at 1300 ; People v Burnell , 183 AD3d 931, 932 [2020], lv denied 35 NY3d 1043 [2020]), the lack of a valid written waiver is not fatal "where, as here, the oral waiver colloquy is sufficient to demonstrate that the defendant knowingly, intelligently and voluntarily waived his o

2018County Court "engaged defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice' " ( People v Mills , 151 AD3d 1744 , 1745 [4th Dept 2017], lv denied 29 NY3d 1131 [2017]; see People v Lopez , 6 NY3d 248, 256 [2006]), and the oral waiver was buttressed by a written waiver executed by defendant and defense counsel ( see People v Gaines , — AD3d &mdash, &mdash, 2018 NY Slip Op 01740, *1 [4th Dept 2018]).

2018Contrary to defendant's further contention, "the oral waiver of the right to appeal was buttressed by [his] written waiver of [the right to] appeal, which explicitly enumerated the rights that were to be relinquished and [in which defendant] acknowledged that [he] had discussed the consequences of the waiver with counsel' " ( People v Gaines , — AD3d &mdash, &mdash, 2018 NY Slip Op 01740, *1 [4th Dept 2018]).

2017The written waiver of appeal signed during the plea allocution is likewise deficient, as the court failed to ascertain if defendant had read it, was aware of its contents or had discussed it with his attorney (see People v Bradshaw, 18 NY3d 257, 264 [2011]; People v Larock, 139 AD3d 1241, 1242 [2016], lv denied 28 NY3d 932 [2016]).

2017The written waiver of appeal signed during the plea allocution is likewise deficient, as the court failed to ascertain if defendant had read it, was aware of its contents or had discussed it with his attorney (see People v Bradshaw, 18 NY3d 257, 264 [2011]; People v Larock, 139 AD3d 1241, 1242 [2016], lv denied 28 NY3d 932 [2016]).

2014Even accepting defendant’s argument that no plausible strategy could justify counsel’s failure to seek a reopened suppression hearing after the evidentiary landscape was altered by the detective’s trial testimony, we find that the lack of reopening did not prejudice defendant (see Strickland v Washington, 466 US 668 [1984]) or render the assistance he received less than meaningful (see People v Benevento, 91 NY2d 708, 713-714 [1998]).

2014Even accepting defendant’s argument that no plausible strategy could justify counsel’s failure to seek a reopened suppression hearing after the evidentiary landscape was altered by the detective’s trial testimony, we find that the lack of reopening did not prejudice defendant (see Strickland v Washington, 466 US 668 [1984]) or render the assistance he received less than meaningful (see People v Benevento, 91 NY2d 708, 713-714 [1998]).

2014Marvin, J.), that granted suppression, we determined, based on this latter understanding of the facts, that, regardless of the validity of the initial oral warnings, defendant’s “written statement was sufficiently attenuated to be admissible” ( 51 AD3d 63, 67 [1st Dept 2008], lv denied 10 NY3d 863 [2008], cert denied 555 US 1182 [2009].

2014Marvin, J.), that granted suppression, we determined, based on this latter understanding of the facts, that, regardless of the validity of the initial oral warnings, defendant’s “written statement was sufficiently attenuated to be admissible” ( 51 AD3d 63, 67 [1st Dept 2008], lv denied 10 NY3d 863 [2008], cert denied 555 US 1182 [2009].

2025We conclude that defendant's waiver of the right to appeal forecloses our review of his challenge to the court's adverse suppression ruling ( see Thomas , 34 NY3d at 564-565; People v Sanders , 25 NY3d 337, 342 [2015]; People v Kemp , 94 NY2d 831, 833 [1999]; Rohadfox , 175 AD3d at 1814).

2025We conclude that defendant's waiver of the right to appeal forecloses our review of his challenge to the court's adverse suppression ruling ( see Thomas , 34 NY3d at 564-565; People v Sanders , 25 NY3d 337, 342 [2015]; People v Kemp , 94 NY2d 831, 833 [1999]; Rohadfox , 175 AD3d at 1814).

2008Initially, having failed to interpose an objection to the court’s procedure and its response to the juror’s oral inquiry, defendant’s claim of error has not been preserved for our review (see People v Stewart, 81 NY2d 877, 878-879 [1993]; People v Fink, 199 AD2d 855, 856 [1993], lv denied 83 NY2d 852 [1994]; People v Nevins, 178 AD2d 107, 108 [1991], lv denied 79 NY2d 922 [1992]; cf. People v DeRosario, 81 NY2d 801, 802-803 [1993]).

1997The defendant did not preserve for appellate review his present claim that the court’s response to a juror’s oral inquiry was inaccurate and prejudicial, since he failed to raise to the trial court the specific ground he now raises on this appeal (see, CPL 470.05 [2]; People v Balls, 69 NY2d 641, 642 ; see also, People v Stewart, 81 NY2d 877, 878-879 ; cf., People v DeRosario, 81 NY2d 801, 803 ).

1994(Jiffy Sew Corp. v Paar, 29 AD2d 643 ; Chemical Bank v Wasserman, 45 AD2d 703 ; Young v Bohling, 202 NYS2d 826 ; Loper v O’Rourke, 86 Misc 2d 441 .) "The statute [General Obligations Law § 15-301] contemplates modification of an executory term of performance (see Rose v Spa Realty Assoc., 42 NY2d 338 ); it is not concerned with an oral waiver of a condition subsequent, such as a contingency date in a contract for the sale of real property (see Loper v O’Rourke, 86 Misc 2d 441 ).” (Avendanio v Marcantonio, 75 AD2d 796, 797 [2d Dept 1980].) Such a change, in effect, creates a new contract and ma

1980The statute contemplates modification of an executory term of performance (see Rose v Spa Realty Assoc., 42 NY2d 338 ); it is not concerned with an oral waiver of a condition subsequent, such as a contingency date in a contract for the sale of real property (see Loper v O’Rourke, 86 Misc 2d 441 ).

2026In People v Epps , for example, the defendant refused to leave his cell to attend the trial as part of a prisoner "boycott" of the courts, despite the court's warning that the trial would proceed without him ( 37 NY2d 343, 346-347 [1975]).

1990If, as here, the absence was a voluntary one, knowingly made for his own benefit and essential for the protection of his rights, an oral waiver will be upheld (see, People v Epps, 37 NY2d 343 , cert denied 423 US 999 ).

2025As defendant contends and the People correctly concede, defendant's purported waiver of the right to appeal is invalid inasmuch as both the signed written waiver of the right to appeal and the oral waiver colloquy mischaracterized the nature of the right to appeal ( see People v Thomas , 34 NY3d 545, 565-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]; People v Irwin , 232 AD3d 1251, 1251 [4th Dept 2024]; People v Cossette , 199 AD3d 1397, 1398 [4th Dept 2021], lv denied 37 NY3d 1160 [2022]).

2025As defendant contends and the People correctly concede, defendant's purported waiver of the right to appeal is invalid inasmuch as both the signed written waiver and the oral waiver colloquy mischaracterized the nature of the right to appeal, and therefore we are not precluded from reviewing his challenge to the severity of the sentence ( see People v Thomas , 34 NY3d 545 , 565-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]; People v Irwin , 232 AD3d 1251 , 1251 [4th Dept 2024]; People v Cossette , 199 AD3d 1397 , 1398 [4th Dept 2021], lv denied 37 NY3d 1160 [2022]).

2025Contrary to defendant's further contention, however, the invalidity of the waiver of the right to appeal does not undermine the voluntariness of his guilty plea ( see People v Blackwell , 129 AD3d 1690, 1690 [4th Dept 2015], lv denied 26 NY3d 926 [2015]).

2019Contrary to defendant's further contentions, the record establishes that, before defendant pleaded guilty, the court mentioned that the waiver would be a condition of the plea bargain ( cf. People v Willis , 161 AD3d 1584 , 1584 [4th Dept 2018]; People v Blackwell , 129 AD3d 1690 , 1690 [4th Dept 2015], lv denied 26 NY3d 926 [2015]), and "[t]he fact that the appeal waiver was not reduced to writing is of no moment where, as here, the oral waiver was adequate" ( Smith , 164 AD3d at 1621).