voluntariness waiver in New York

2026In an omnibus motion, the defense requests an order suppressing the fruits of allegedly illegal searches and seizures ( Mapp v Ohio , 367 US 643 [1961], Dunaway v New York , 442 US 200 [1978], People v Ingle , 36 NY2d 413 [1975]); precluding any unnoticed statements or identification testimony; granting a voluntariness hearing regarding unnoticed statements; directing supplemental discovery procedures; and precluding the People from introducing evidence of prior bad acts at trial.

2026Second, the defense requests an order suppressing the results of a chemical breath test (VTL 1194 [2] [a]); suppressing the fruits of allegedly illegal searches and seizures ( Mapp v Ohio , 367 US 643 [1961], Dunaway v New York , 442 US 200 [1978]); suppressing a noticed statement ( People v Huntley , 15 NY2d [1965]); precluding and granting a voluntariness hearing regarding unnoticed statements; directing the People to comply with a request for a bill of particulars; directing supplemental discovery procedures; and precluding the People from introducing evidence of prior bad acts at trial.

2026In an omnibus motion, the defense requests an order suppressing the fruits of allegedly illegal searches and seizures ( Mapp v Ohio , 367 US 643 [1961], Dunaway v New York , 442 US 200 [1978], People v Ingle , 36 NY2d 413 [1975]); precluding any unnoticed statements or identification testimony; granting a voluntariness hearing regarding unnoticed statements; directing supplemental discovery procedures; and precluding the People from introducing evidence of prior bad acts at trial.

2026Second, the defense requests an order suppressing the results of a chemical breath test (VTL 1194 [2] [a]); suppressing the fruits of allegedly illegal searches and seizures ( Mapp v Ohio , 367 US 643 [1961], Dunaway v New York , 442 US 200 [1978]); suppressing a noticed statement ( People v Huntley , 15 NY2d [1965]); precluding and granting a voluntariness hearing regarding unnoticed statements; directing the People to comply with a request for a bill of particulars; directing supplemental discovery procedures; and precluding the People from introducing evidence of prior bad acts at trial.

2025Mr. Brown moves to suppress a noticed statement as involuntary and as the fruit of an unlawful arrest ( People v Huntley , 15 NY2d 72 [1965]; Dunaway v New York , 442 US 200 [1979]); for a voluntariness hearing regarding any statements the People intend to use for impeachment purposes ( Harris v New York , 401 US 222 [1971]; People v Maerling , 64 NY2d 134 [1984]); and to preclude the People from introducing evidence of prior bad acts at trial ( People v Sandoval , 34 NY2d 371 [1974]; People v Molineux , 168 NY 264 [1901]).

2024SANDOVAL The defendant's motion pursuant to People v Sandoval, 34 NY2d 371 [1974] and People v Ventimiglia, 52 NY2d 350 [1981] is referred to the trial court for determination.

2013Because County Court advised defendant of the maximum sentence that could be imposed prior to his waiver and defendant does not otherwise challenge the voluntariness of his waiver, he is foreclosed from challenging the severity of his sentence on appeal (see People v Lococo, 92 NY2d 825, 827 [1998]; People v Grant, 96 AD3d 1697 , 1697 [2012], lv denied 19 NY3d 997 [2012]; cf. People v Newman, 21 AD3d 1343, 1343 [2005]).

2013Because County Court advised defendant of the maximum sentence that could be imposed prior to his waiver and defendant does not otherwise challenge the voluntariness of his waiver, he is foreclosed from challenging the severity of his sentence on appeal (see People v Lococo, 92 NY2d 825, 827 [1998]; People v Grant, 96 AD3d 1697 , 1697 [2012], lv denied 19 NY3d 997 [2012]; cf. People v Newman, 21 AD3d 1343, 1343 [2005]).

2002The record establishes that defendant voluntarily, knowingly and intelligently waived his right to be present at sidebar conferences with prospective jurors (see, People v Vargas, 88 NY2d 363 ) and that the court’s statement to defendant regarding the disadvantages of attending sidebar conferences occurred after defendant placed his statement of waiver on the record for the first time and clearly did not affect the voluntariness of the waiver (see, People v McLean, 246 AD2d 445, 446 , lv denied 91 NY2d 975 ).

2000We conclude from the totality of the record that the court’s warnings to defendant concerning the disadvantages of attending sidebar conferences did not affect the voluntariness of the waiver (see, People v McLean, 246 AD2d 445 , lv denied 91 NY2d 975 ).

1980"The burden of proof rests heavily upon the People to establish the voluntariness of that waiver of a constitutional right” (People v Whitehurst, 25 NY2d 389, 391 ), 3 that is, "that the consent was, in fact, freely and voluntarily given” (Bumper v North Carolina, 391 US 543, 548 ; People v Kuhn, 33 NY2d 203, 208 ; People v Benitez, 76 AD2d 196 ).

1980Although Ms. Richardson had the right to permit the police to enter and search the apartment (People v Cosme, 48 NY2d 286 ; People v Wood, 31 NY2d 975 ), "the burden of proof rests heavily upon the People to establish the voluntariness of that waiver of a constitutional right” (People v Whitehurst, 25 NY2d 389, 391 ), 3 that is, "that the consent was, in fact, freely and voluntarily given” (Bumper v North Carolina, 391 US 543, 548 ; People v Kuhn, 33 NY2d 203, 208 ; People v Brown, 77 AD2d 537 , decided herewith).

2025Mr. Brown moves to suppress a noticed statement as involuntary and as the fruit of an unlawful arrest ( People v Huntley , 15 NY2d 72 [1965]; Dunaway v New York , 442 US 200 [1979]); for a voluntariness hearing regarding any statements the People intend to use for impeachment purposes ( Harris v New York , 401 US 222 [1971]; People v Maerling , 64 NY2d 134 [1984]); and to preclude the People from introducing evidence of prior bad acts at trial ( People v Sandoval , 34 NY2d 371 [1974]; People v Molineux , 168 NY 264 [1901]).

1993However, with the adoption of CPL 60.45 — along with the United States Supreme Court’s decision the following year in Harris v New York ( 401 US 222 [1971]) — it became clear that a voluntariness hearing was required even when the People sought only to impeach a defendant with the prior statement.

2024SANDOVAL The defendant's motion pursuant to People v Sandoval, 34 NY2d 371 [1974] and People v Ventimiglia, 52 NY2d 350 [1981] is referred to the trial court for determination.

2024SANDOVAL The defendant's motion pursuant to People v Sandoval, 34 NY2d 371 [1974] and People v Ventimiglia, 52 NY2d 350 [1981] is referred to the trial court for determination.

2021Defendant's reliance on People v Odum ( 31 NY3d 344 [2018]) is misplaced.

2021Defendant's reliance on People v Odum ( 31 NY3d 344 [2018]) is misplaced.

2020Even if the written waiver is considered, it did not contain clarifying language; instead, it perpetuated the mischaracterization that the waiver of the right to appeal constituted an absolute bar to the taking of a first-tier direct appeal and even incorrectly stated that the waiver foreclosed appellate review of nonwaivable issues, such as the voluntariness of the waiver, legality of the sentence, and defendant's competency to stand trial ( see Thomas , 34 NY3d at 564, 566; Callahan , 80 NY2d at 280 ).

2019Each defendant was advised that his or her waiver would not bar certain appellate arguments, including claims concerning the legality of the imposed sentence, competency to stand trial, constitutional speedy trial, and the voluntariness of the waiver (see Callahan, 80 NY2d at 280 ).

2018J., dissenting op. at 362, 78 N.Y.S.3d at 265-66, 102 N.E.3d at 1047-48) simply because the Supreme Court of the United States made express in Birchfield , --- U.S. ----, 136 S.Ct. at 2184 what this Court had recognized long before Atkins was decided-that the Fourth Amendment permits warrantless breath tests ( see Kates , 53 N.Y.2d at 594 -595 , 444 N.Y.S.2d 446 , 428 N.E.2d 852 ).

2018J., dissenting op at 362) simply because the Supreme Court of the United States made express in Birchfield (579 US at &mdash, 136 S Ct at 2184 ) what this Court had recognized long before Atkins was decided—that the Fourth Amendment permits warrantless breath tests ( see Kates , 53 NY2d at 594-595 ).

2018J., dissenting op. at 362, 78 N.Y.S.3d at 265-66, 102 N.E.3d at 1047-48) simply because the Supreme Court of the United States made express in Birchfield , --- U.S. ----, 136 S.Ct. at 2184 what this Court had recognized long before Atkins was decided-that the Fourth Amendment permits warrantless breath tests ( see Kates , 53 N.Y.2d at 594 -595 , 444 N.Y.S.2d 446 , 428 N.E.2d 852 ).

2018J., dissenting op. at 362, 78 N.Y.S.3d at 265-66, 102 N.E.3d at 1047-48) simply because the Supreme Court of the United States made express in Birchfield , --- U.S. ----, 136 S.Ct. at 2184 what this Court had recognized long before Atkins was decided-that the Fourth Amendment permits warrantless breath tests ( see Kates , 53 N.Y.2d at 594 -595 , 444 N.Y.S.2d 446 , 428 N.E.2d 852 ).

2016Defendant’s contention that his plea was not voluntary, knowing and intelligent because he did not recite the underlying facts of the crimes to which he pleaded guilty and merely gave monosyllabic responses to the court’s questions is actually a challenge to the factual sufficiency of the plea allocution, which is encompassed by defendant’s valid waiver of the right to appeal (see People v Jamison, 71 AD3d 1435, 1436 [2010], lv denied 14 NY3d 888 [2010]).

2016Defendant’s contention that his plea was not voluntary, knowing and intelligent because he did not recite the underlying facts of the crimes to which he pleaded guilty and merely gave monosyllabic responses to the court’s questions is actually a challenge to the factual sufficiency of the plea allocution, which is encompassed by defendant’s valid waiver of the right to appeal (see People v Jamison, 71 AD3d 1435, 1436 , lv denied 14 NY3d 888 ).

2016We also conclude that any challenge by defendant to the voluntariness of his waiver of the right to appeal is without merit (see People v Holman, 89 NY2d 876, 878 [1996]; People v Hayes, 71 AD3d 1187, 1188 [2010], lv denied 15 NY3d 852 [2010], reconsideration denied 15 NY3d 921 [2010]).

2016We also conclude that any challenge by defendant to the voluntariness of his waiver of the right to appeal is without merit (see People v Holman, 89 NY2d 876, 878 ; People v Hayes, 71 AD3d 1187, 1188 , lv denied 15 NY3d 852 , reconsideration denied 15 NY3d 921 ).