plea and appeal waiver in New York

2020In explaining the waiver, the court suggested that defendant was entirely ceding any ability to challenge her guilty plea on appeal, but such an "improper description of the scope of the appellate rights relinquished by the waiver is refuted by . . . precedent, whereby a defendant retains the right to appellate review of very selective fundamental issues," including the voluntariness of the plea and appeal waiver, the legality of the sentence, and the defendant's competency to stand trial ( Thomas , 34 NY3d at 566; see People v Callahan , 80 NY2d 273, 280 [1992]).

2019And none exists, as defendant does not waive appellate review of fundamental issues, such as the voluntariness of the plea and appeal waiver. - 10 - - 11 - Nos. 87, 88, 89 74 NY2d at 11 ; People v Callahan, 80 NY2d 273, 280 [1992]; People v Hansen, 95 NY2d 227, 230-231 [2000]). “[S]everal categories of appellate claims” remain nonwaivable “because of a larger societal interest in their correct resolution” (Callahan, 80 NY2d at 280 ).

2022As to the "voluntariness of the plea and appeal waiver" ( People v Christopher B. , 184 AD3d 657, 658 ), these are issues that would seem, in most cases, to be best addressed by counsel, who, having participated in the plea proceeding, can advise the defendant regarding whether any viable appellate issues along these lines exist ( see Strickland v Washington , 466 US 668, 690 ).

2021As the Court of Appeals has recently reiterated, "[t]he improper description of the scope of the appellate rights relinquished by the waiver is refuted by . . . precedent, whereby a defendant retains the right to appellate review of very selective [*2]fundamental issues, including the voluntariness of the plea and appeal waiver, legality of the sentence and the jurisdiction of the court" ( People v Thomas , 34 NY3d at 566; see People v Leiva , 184 AD3d 731 ; People v Christopher B. , 184 AD3d at 659).

2025The trial court bears the paramount responsibility "to ensure that each defendant's 'full appreciation of the consequences' and understanding of the terms and conditions of the plea and appeal waiver are 'apparent on the face of the record'" ( Thomas , 34 NY3d at 560 [citation omitted]; see Sanders , 25 NY3d at 340 ; Lopez , 6 NY3d at 256 ). [FN6] Second, a defendant cannot waive appellate review of certain fundamental issues of which society demands correct resolutions.

2020We agree. "[I]n determining whether the record demonstrates that a defendant understood an appeal waiver's consequences, proper considerations include the defendant's consultation with counsel and on-the-record acknowledgments of understanding, a written waiver that supplements or clarifies the court's oral advice and the defendant's experience with the criminal justice system" ( People v Thomas , 34 NY3d 545 , 560 [2019]; see People v Sanders , 25 NY3d 337, 341 [2015]). "[O]f paramount importance is the trial court's responsibility to ensure each defendant's full appreciation of the consequen

2020A waiver that limits the scope of appellate review "is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( People v Lopez , 6 NY3d at 256 ; see People v Bradshaw , 18 NY3d 257, 264 ; People v Brown , 122 AD3d 133, 136 ).

2020A waiver that limits the scope of appellate review "is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( People v Lopez , 6 NY3d at 256 ; see People v Bradshaw , 18 NY3d 257, 264 ; People v Brown , 122 AD3d 133, 136 ).

2020We agree. "[I]n determining whether the record demonstrates that a defendant understood an appeal waiver's consequences, proper considerations include the defendant's consultation with counsel and on-the-record acknowledgments of understanding, a written waiver that supplements or clarifies the court's oral advice and the defendant's experience with the criminal justice system" ( People v Thomas , 34 NY3d 545 , 560 [2019]; see People v Sanders , 25 NY3d 337, 341 [2015]). "[O]f paramount importance is the trial court's responsibility to ensure each defendant's full appreciation of the consequen

2019And none exists, as defendant does not waive appellate review of fundamental issues, such as the voluntariness of the plea and appeal waiver. - 10 - - 11 - Nos. 87, 88, 89 74 NY2d at 11 ; People v Callahan, 80 NY2d 273, 280 [1992]; People v Hansen, 95 NY2d 227, 230-231 [2000]). “[S]everal categories of appellate claims” remain nonwaivable “because of a larger societal interest in their correct resolution” (Callahan, 80 NY2d at 280 ).

2025Competency challenges are essentially a subset of voluntariness challenges: they cannot be waived because of the "inherent contradiction in arguing that a defendant may be incompetent, and yet knowingly or intelligently waive his right[s]" ( see People v Armlin , 37 NY2d 167, 172 [1975]).

2025Competency challenges are essentially a subset of voluntariness challenges: they cannot be waived because of the "inherent contradiction in arguing that a defendant may be incompetent, and yet knowingly or intelligently waive his right[s]" ( see People v Armlin , 37 NY2d 167, 172 [1975]).

2021Moreover, County Court did not rely on counsel's affirmation, as the record reflects that County Court subsequently conducted a plea colloquy wherein defendant affirmed that he understood the ramifications of the plea and appeal waiver and that he was pleading guilty and waiving the right to appeal voluntarily ( see People v Curry , 123 AD3d at 1382-1383; People v Rodriguez , 189 AD2d 684, 685 [1993], lvs denied 81 NY2d 892 [1993]).

2021Moreover, County Court did not rely on counsel's affirmation, as the record reflects that County Court subsequently conducted a plea colloquy wherein defendant affirmed that he understood the ramifications of the plea and appeal waiver and that he was pleading guilty and waiving the right to appeal voluntarily ( see People v Curry , 123 AD3d at 1382-1383; People v Rodriguez , 189 AD2d 684, 685 [1993], lvs denied 81 NY2d 892 [1993]).

2021As the Court of Appeals has recently reiterated, "[t]he improper description of the scope of the appellate rights relinquished by the waiver is refuted by . . . precedent, whereby a defendant retains the right to appellate review of very selective [*2]fundamental issues, including the voluntariness of the plea and appeal waiver, legality of the sentence and the jurisdiction of the court" ( People v Thomas , 34 NY3d at 566; see People v Leiva , 184 AD3d 731 ; People v Christopher B. , 184 AD3d at 659).

2021On this record, we cannot conclude that the defendant understood the nature of the appellate rights that he was waiving ( see People v Thomas , 34 NY3d at 566; People v Leiva , 184 AD3d 731 ; People v Christopher B. , 184 AD3d at 659).

2019And none exists, as defendant does not waive appellate review of fundamental issues, such as the voluntariness of the plea and appeal waiver. - 10 - - 11 - Nos. 87, 88, 89 74 NY2d at 11 ; People v Callahan, 80 NY2d 273, 280 [1992]; People v Hansen, 95 NY2d 227, 230-231 [2000]). “[S]everal categories of appellate claims” remain nonwaivable “because of a larger societal interest in their correct resolution” (Callahan, 80 NY2d at 280 ).

2019Thus, we cannot conclude that the appeal waivers on the records in Green and Lang were knowingly or voluntarily made in the face of erroneous advisements warning of absolute bars to the pursuit of all potential remedies, including those affording collateral relief on certain nonwaivable issues in both state and federal courts (see CPL 440.10 [1] [a], [b], [e]; 440.20; Parisi v United States, 529 F3d 134, 139 [2d Cir 2008], cert denied 555 US 1197 [2009]).

2005Finding no basis for determining that the plea and appeal waiver were other than knowing, voluntary and intelligent, we decline to disturb them (see People v Hughes, 3 AD3d 736, 737 [2004]), and his contention that his sentence was harsh and excessive is precluded by the valid appeal waiver (see People v Clow, 10 AD3d 803, 804 [2004]; People v Hughes, supra at 737 ).

2005Finding no basis for determining that the plea and appeal waiver were other than knowing, voluntary and intelligent, we decline to disturb them (see People v Hughes, 3 AD3d 736, 737 [2004]), and his contention that his sentence was harsh and excessive is precluded by the valid appeal waiver (see People v Clow, 10 AD3d 803, 804 [2004]; People v Hughes, supra at 737 ).

2005Finding no basis for determining that the plea and appeal waiver were other than knowing, voluntary and intelligent, we decline to disturb them (see People v Hughes, 3 AD3d 736, 737 [2004]), and his contention that his sentence was harsh and excessive is precluded by the valid appeal waiver (see People v Clow, 10 AD3d 803, 804 [2004]; People v Hughes, supra at 737 ).

2004Here, because our review of the record reflects that the plea and appeal waiver are, in all respects, valid and enforceable, we adhere to the principle that, “[b]y waiving [his] right to appeal, defendant agreed to end this matter entirely at sentencing and to abide by the [trial] court’s exercise of discretion in determining [his] sentence” (People v Hidalgo, supra at 737 [emphasis added]; see People v Boyce, 2 AD3d 1208, 1209 [2003], lv denied 2 NY3d 737 [2004]). “[I]n most situations, the appellate courts should honor such waivers [of the right to appeal]” (People v Callahan, supra at 280 )

2004Here, because our review of the record reflects that the plea and appeal waiver are, in all respects, valid and enforceable, we adhere to the principle that, “[b]y waiving [his] right to appeal, defendant agreed to end this matter entirely at sentencing and to abide by the [trial] court’s exercise of discretion in determining [his] sentence” (People v Hidalgo, supra at 737 [emphasis added]; see People v Boyce, 2 AD3d 1208, 1209 [2003], lv denied 2 NY3d 737 [2004]). “[I]n most situations, the appellate courts should honor such waivers [of the right to appeal]” (People v Callahan, supra at 280 )

2004Here, because our review of the record reflects that the plea and appeal waiver are, in all respects, valid and enforceable, we adhere to the principle that, “[b]y waiving [his] right to appeal, defendant agreed to end this matter entirely at sentencing and to abide by the [trial] court’s exercise of discretion in determining [his] sentence” (People v Hidalgo, supra at 737 [emphasis added]; see People v Boyce, 2 AD3d 1208, 1209 [2003], lv denied 2 NY3d 737 [2004]). “[I]n most situations, the appellate courts should honor such waivers [of the right to appeal]” (People v Callahan, supra at 280 )