written appeal waiver in New York

2025People v Bradshaw , 18 NY3d 257, 265 [2011] [waiver invalid where record was insufficient to establish defendant understood the contents of the written appeal waiver form]; see also People v Billingslea , 6 NY3d 248, 257 [2006];{**44 NY3d at 934} People v Thomas , 34 NY3d 545 , 565 [2019] [waivers invalid where courts gave inaccurate descriptions of the rights waived]). [*5]The appeal waiver example is illustrative.

2023County Court clearly distinguished the waiver of appeal from the trial-related rights automatically extinguished by the guilty plea, explained the nature of the right to appeal and ensured that defendant understood that right, and ascertained that he had discussed the written appeal waiver with counsel and understood it prior to signing it ( see People v Lopez , 6 NY3d 248, 256 [2006]; People v Harper , 207 AD3d 965, 966 [3d Dept 2022]).

2025Based upon the Supreme Court's explanation of the right to appeal and the waiver, the fact that the defendant acknowledged signing and understanding the written appeal waiver, and considering the defendant's age, experience, and background, the waiver was knowing, voluntary, and intelligent ( see People v Sanders , 25 NY3d 337, 340 ; People v Bradshaw , 18 NY3d 257, 264 ).

2025People v Bradshaw , 18 NY3d 257, 265 [2011] [waiver invalid where record was insufficient to establish defendant understood the contents of the written appeal waiver form]; see also People v Billingslea , 18 NY3d 257, 265 [2006]; People v Thomas , 34 NY3d 545, 565 [2019] [waivers invalid where courts gave inaccurate descriptions of the rights waived]).

2016Furthermore, although the defendant executed a written appeal waiver form, there is no indication on the record that the County Court obtained an acknowledgment from the defendant *886 that she had, in fact, signed the waiver or, if she had, she was aware of its contents or discussed it with defense counsel (see People v Elmer, 19 NY3d 501, 510 [2012]; People v Callahan, 80 NY2d 273, 283 [1992]; People v Gordon, 127 AD3d at 1231 ; People v Brown, 122 AD3d 133, 145 [2014]).

2015Further, although defendant signed a written appeal waiver in court, the court did not confirm that he had read it, was aware of its contents or had “a full appreciation of the consequences” of such waiver (People v Seaberg, 74 NY2d 1, 11 [1989]; see People v Elmer, 19 NY3d 501, 510 [2012]; People v Bradshaw, 18 NY3d 257, 264-267 [2011]).

2025In addition, the written appeal waiver, which was executed in open court after conferring with counsel, also set forth the specific, various rights being waived and which rights nevertheless survived the appeal waiver, and included a confirmation by defendant that he had a "full opportunity" to discuss these rights and that any questions he had were answered [*4]to his satisfaction by his attorney ( see People v Ramos , 7 NY3d 737 , 738 [2006]; People v Taylor , 228 AD3d 1144 , 1145 [3d Dept 2024], lv denied 42 NY3d 1022 [2024]; People v Baker , 221 AD3d at 1199 ).

2025Based on the foregoing, the combination of the written appeal waiver that was reviewed with counsel and defendant's on-the-record acknowledgement overcame the ambiguities in the oral colloquy, and, therefore, we are satisfied that "the totality of the circumstances reveals that the defendant understood the nature of the appellate rights being waived" ( People v Thomas , 34 NY3d 545 , 559 [2019]; see People v Ramos , 7 NY3d at 738; People v Joseph , 227 AD3d at 1235).

2020Although the record on appeal reflects that the defendant executed a written appeal waiver form, there was no further discussion of the written waiver on the record ( see People v Brown , 122 AD3d at 145 ; People v Callahan , 80 NY2d 273, 283 ).

2019Moreover, although the record on appeal reflects that the defendant executed a written appeal waiver form, the transcript of the plea proceeding shows that the Supreme Court did not ascertain on the record whether the defendant had read the waiver, discussed it with counsel, or was even aware of its contents ( see People v Callahan , 80 NY2d 273, 283 ; People v Waldon , 157 AD3d at 914; People v Brown , 122 AD3d 133, 145 ).

2025Based upon the Supreme Court's explanation of the right to appeal and the waiver, the fact that the defendant acknowledged signing and understanding the written appeal waiver, and considering the defendant's age, experience, and background, the waiver was knowing, voluntary, and intelligent ( see People v Sanders , 25 NY3d 337, 340 ; People v Bradshaw , 18 NY3d 257, 264 ).

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 ).

2020Moreover, although the record reflects that the defendant executed a written appeal waiver form, the transcript of the plea proceeding demonstrates that the court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether he was even aware of its contents ( see People v Santeramo , 153 AD3d 1286, 1287 ; People v Iovino , 142 AD3d 561, 561-562 ; People v Brown , 122 AD3d 133, 145 ).

2020Although the record includes a written appeal waiver form executed by the defendant, the Supreme Court did not engage in a comprehensive colloquy with the defendant and "did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether he was even aware of its contents" ( People v Brown , 122 AD3d at 145 ).

2014Therefore, “notwithstanding the written appeal waiver form, it cannot be said that defendant knowingly, intelligently and voluntarily waived his right to appeal” (People v Bradshaw, 18 NY3d at 267 ; see People v Elmer, 19 NY3d 501, 510 [2012]; People v Vasquez, 101 AD3d 1054, 1055 [2012]; cf. People v Ramos, 7 NY3d 737, 738 [2006]).

2014Therefore, “notwithstanding the written appeal waiver form, it cannot be said that defendant knowingly, intelligently and voluntarily waived his right to appeal” (People v Bradshaw, 18 NY3d at 267 ; see People v Elmer, 19 NY3d 501, 510 [2012]; People v Vasquez, 101 AD3d 1054, 1055 [2012]; cf. People v Ramos, 7 NY3d 737, 738 [2006]).

2021We affirm. [FN2] Initially, we agree with defendant that the record fails to demonstrate that his waiver of appeal was knowing, voluntary and intelligent ( see People v Thomas , 34 NY3d 545 , 563 [2019]; People v Lopez , 6 NY3d 248, 256 [2006]). "[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 appeal waiver that supplements or clarifies the court's oral advice and the defendant's experience with the c

2019We also invalidated the appeal waiver in People v Bradshaw, where the court’s colloquy was “terse” – advising the defendant that an appeal waiver “means[] the conviction here is final, that there is not a higher court you can take [the case] to” – since the record did not contain any assurances that the defendant, who had a significant mental health history, understood the shorthand reference to the distinct appellate rights he was surrendering and, beyond asking whether it had been signed, the court made no inquiry of the defendant’s understanding of the contents of the written appeal waiver

2026Although County Court's oral colloquy remedied the written waiver's mischaracterization of the waiver as an absolute bar to the taking of an appeal, the court's verbal statements did nothing to counter the other inaccuracies set forth in the written appeal waiver, including the purported waiver of all state and federal postconviction challenges ( see People v Mason , 236 AD3d 1354 , 1355 [4th Dept 2025], lv denied 43 NY3d 1010 [2025]; see also Nesmith , 235 AD3d at 1240; People v Hughes , 199 AD3d 1332, 1333 [4th Dept 2021]).

2025Although County Court's colloquy "remedied the mischaracterization of the waiver as an absolute bar to the right to appeal," the court's verbal statements "did nothing to counter the other inaccuracies set forth in the written appeal waiver" ( Hughes , 199 AD3d at 1333; see Fernandez , 218 AD3d at 1258; Rumph , 207 AD3d at 1210; Hunter , 203 AD3d at 1686).

2023The language of the written appeal waiver "is overbroad and inaccurate," and County Court did not overcome these defects "by ensuring that defendant understood that some appellate and collateral review survives an appeal waiver" ( People v Devane , 212 AD3d 894, 895 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 39 NY3d 1110 [2023]; see People v Ramjiwan , 209 AD3d 1176, 1177 [3d Dept 2022]; People v Palmer , 207 AD3d 802, 803 [3d Dept 2022], lv denied 39 NY3d 941 [2022]; People v Williams , 203 AD3d 1398, 1398-1399 [3d Dept 2022], lv denied 38 NY3d 1036 [2022]).

2023The language of the written appeal waiver "is overbroad and inaccurate," and County Court did not overcome these defects "by ensuring that defendant understood that some appellate and collateral review survives an appeal waiver" ( People v Devane , 212 AD3d 894, 895 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 39 NY3d 1110 [2023]; see People v Ramjiwan , 209 AD3d 1176, 1177 [3d Dept 2022]; People v Palmer , 207 AD3d 802, 803 [3d Dept 2022], lv denied 39 NY3d 941 [2022]; People v Williams , 203 AD3d 1398, 1398-1399 [3d Dept 2022], lv denied 38 NY3d 1036 [2022]).

2022"The written appeal waiver executed by defendant was overbroad, as it indicated that the waiver was a complete bar to a direct appeal as well as to collateral relief on certain nonwaivable issues in both state and federal courts" ( People v Harris , 201 AD3d 1030, 1030 [2022], lvs denied 38 NY3d 950 , 952, 954 [2022]; see People v Bisono , 36 NY3d 1013 , 1017 [2020]; People v Mayo , 195 AD3d 1313, 1314 [2021]; People v Ghee , 195 AD3d 1244, 1244 [2021], lvs denied 37 NY3d 992 [2021]).

2022"The written appeal waiver executed by defendant was overbroad, as it indicated that the waiver was a complete bar to a direct appeal as well as to collateral relief on certain nonwaivable issues in both state and federal courts" ( People v Harris , 201 AD3d 1030, 1030 [3d Dept 2022], lv denied 38 NY3d 950 [2022]; see People v Bisono , 36 NY3d 1013 , 1017 [2020]; People v Mayo , 195 AD3d 1313, 1314 [3d Dept 2021]).

2020Moreover, although the record reflects that the defendant executed a written appeal waiver form, the transcript of the plea proceeding demonstrates that the court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether he was even aware of its contents ( see People v Santeramo , 153 AD3d 1286, 1287 ; People v Iovino , 142 AD3d 561, 561-562 ; People v Brown , 122 AD3d 133, 145 ).

2019Moreover, although the defendant executed a written appeal waiver form, the transcript of the plea proceeding demonstrates that the court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether he was even aware of its contents ( see People v Santeramo , 153 AD3d 1286, 1287 ; People v Brown , 122 AD3d at 145 ).

2026An appeal waiver is valid where the record shows that it was knowing, intelligent and voluntary and that the defendant understood that the right to appeal is separate from the rights forfeited by a guilty plea ( see People v Thomas , 34 NY3d 545 , 559 [2019]). "[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 appeal waiver that supplements or clarifies the court's oral advice and the defendant's experi

2024The written appeal waiver contains language that has been held to be overly broad and inaccurate, purporting to erect an absolute bar to a direct appeal by providing that the waiver "will mark the end of my case" and preclude pursuit of an appeal "in any State or Federal court" or a "collateral[ ] attack in any State or Federal Court" ( see People v Bisono , 36 NY3d 1013 , 1017-1018 [2020]; People v Thomas , 34 NY3d 545 , 558, 566 [2019]; People v Dunbar , 218 AD3d 931, 932 [3d Dept 2023], lv denied 40 NY3d 950 [2023]; People v McLaughlin , 208 AD3d 1556, 1557 [3d Dept 2022], lv denied 39 NY3d

2023The language of the written appeal waiver "is overbroad and inaccurate," and County Court did not overcome these defects "by ensuring that defendant understood that some appellate and collateral review survives an appeal waiver" ( People v Devane , 212 AD3d 894, 895 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 39 NY3d 1110 [2023]; see People v Ramjiwan , 209 AD3d 1176, 1177 [3d Dept 2022]; People v Palmer , 207 AD3d 802, 803 [3d Dept 2022], lv denied 39 NY3d 941 [2022]; People v Williams , 203 AD3d 1398, 1398-1399 [3d Dept 2022], lv denied 38 NY3d 1036 [2022]).

2023The language of the written appeal waiver "is overbroad and inaccurate," and County Court did not overcome these defects "by ensuring that defendant understood that some appellate and collateral review survives an appeal waiver" ( People v Devane , 212 AD3d 894, 895 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 39 NY3d 1110 [2023]; see People v Ramjiwan , 209 AD3d 1176, 1177 [3d Dept 2022]; People v Palmer , 207 AD3d 802, 803 [3d Dept 2022], lv denied 39 NY3d 941 [2022]; People v Williams , 203 AD3d 1398, 1398-1399 [3d Dept 2022], lv denied 38 NY3d 1036 [2022]).

2024The written appeal waiver signed by defendant contained overbroad language, and Supreme Court's oral colloquy did not overcome this defect by ensuring defendant understood that some appellate rights survived the waiver ( see People v Stratton , 201 AD3d 1201, 1202 [3d Dept 2022], lv denied 38 NY3d 1036 [2022]; People v Robinson , 195 AD3d 1235 , 1236 [3d Dept 2021]).

2022The written appeal waiver signed by defendant contained overbroad language indicating that she was relinquishing any right to appeal so long as County Court sentenced her in accordance with the plea agreement and the colloquy "did not overcome this defect by ensuring that defendant understood that some appellate rights survive the appeal waiver" ( People v Robinson , 195 AD3d 1235 , 1236 [2021]; see People v Thomas , 34 NY3d 545 , 566 [2019]; People v Stratton , 201 AD3d 1201, 1202 [2022]).

2017County Court explained that the right to appeal was distinct from the trial-related rights forfeited by the guilty plea, and the record further reflects that defendant, after discussion with defense counsel, executed a written appeal waiver in open court and acknowledged that he understood it (see People v Baxter, 154 AD3d 1010, 1011 [2017]; People v Hess, 150 AD3d 1560 , 1560 [2017]; People v Pixley, 150 AD3d 1555, 1556-1557 [2017], lv denied 30 NY3d 952 [2017]; People v White, 145 AD3d 1324, 1324-1325 [2016]).

2017County Court explained that the right to appeal was distinct from the trial-related rights forfeited by the guilty plea, and the record further reflects that defendant, after discussion with defense counsel, executed a written appeal waiver in open court and acknowledged that he understood it ( see People v Baxter , 154 AD3d 1010, 1011 [2017]; People v Hess , 150 AD3d 1560 , 1560 [2017]; People v Pixley , 150 AD3d 1555, 1556-1557 [2017], lv denied 30 NY3d 952 [2017]; People v White , 145 AD3d 1324, 1324-1325 [2016]).

2018Defendant also assented to and executed in open court a written appeal waiver, which stated that he was voluntarily, knowingly and intelligently waiving his right to appeal, that his attorney had answered all of his questions regarding the appeal waiver to his satisfaction and that, among other things, he was giving up his right to appeal all matters relating to the conviction and [*2]sentence ( see People v Lomax , 161 AD3d 1454 , 1455 [2018]; People v Collins , 53 AD3d 932, 933 [2008], lv denied 11 NY3d 831 [2008]).

2018At sentencing, defendant assented to and executed in open court a written appeal waiver, which stated that he was knowingly and voluntarily waiving his "separate and distinct" right to appeal, that his attorney had counseled him on the legal ramifications and consequences of the waiver and that, among other things, he was giving up his right to appeal to take advantage of the plea agreement offered to him ( see People v Lomax , 161 AD3d 1454 , 1455 [2018]; People v Collins , 53 AD3d 932, 933 [2008], lv denied 11 NY3d 831 [2008]; cf. People v Young , 253 AD2d 982, 982-983 [1998], lv denied 92 N

2016Furthermore, the record demonstrates that defendant executed a written appeal waiver in open court after reviewing it with defense counsel (see People v Tyler, 130 AD3d at 1384 ; People v Turner, 126 AD3d 1228, 1229 [2015]).

2016Furthermore, the record demonstrates that defendant executed a written appeal waiver in open court after reviewing it with defense counsel (see People v Tyler, 130 AD3d at 1384 ; People v Turner, 126 AD3d 1228, 1229 [2015]).

2023Though the waiver contained language suggesting that certain appellate rights survived, and defendant's brief presents his confusion specific to the waiver of collateral proceedings, in assessing whether a written waiver is sufficient, "[t]he waiver[ ] cannot be upheld . . . [under] the theory that the offending language can be ignored," as it would be tantamount to finding the waiver partially valid and would leave this Court to surmise whether defendant comprehended the import of the conflicting statements ( People v Thomas , 34 NY3d at 566; see People v Barrales , 179 AD3d 1313, 1314-1315 [

2020To that end, although County Court explained the separate and distinct nature of the right to appeal, the otherwise brief explanation of the appeal waiver was overly broad and tended to impermissibly signify a complete bar to any appellate rights ( see People v Thomas , 34 NY3d 545 , 566-567 [2019]; People v Barrales , 179 AD3d 1313, 1314 [2020]), and the written appeal waiver — which indicates that defendant waives his right to appeal only in connection with his guilty plea to criminal sale of a controlled substance in the third degree — is insufficient to clarify any misleading information.

2023In light of defendant's invalid appeal waiver, review of any contentions that would be encompassed by that waiver is not precluded ( see People v Davis , 204 AD3d 1072, 1074 [3d Dept 2022], lv denied 38 NY3d 1032 [2022[*2]]; People v Linear , 200 AD3d 1498, 1499 [3d Dept 2021], lv denied 38 NY3d 951 [2022]).

2023In light of defendant's invalid appeal waiver, review of any contentions that would be encompassed by that waiver is not precluded ( see People v Davis , 204 AD3d 1072, 1074 [3d Dept 2022], lv denied 38 NY3d 1032 [2022[*2]]; People v Linear , 200 AD3d 1498, 1499 [3d Dept 2021], lv denied 38 NY3d 951 [2022]).

2023The language of the written appeal waiver "is overbroad and inaccurate," and County Court did not overcome these defects "by ensuring that defendant understood that some appellate and collateral review survives an appeal waiver" ( People v Devane , 212 AD3d 894, 895 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 39 NY3d 1110 [2023]; see People v Ramjiwan , 209 AD3d 1176, 1177 [3d Dept 2022]; People v Palmer , 207 AD3d 802, 803 [3d Dept 2022], lv denied 39 NY3d 941 [2022]; People v Williams , 203 AD3d 1398, 1398-1399 [3d Dept 2022], lv denied 38 NY3d 1036 [2022]).

2023The language of the written appeal waiver "is overbroad and inaccurate," and County Court did not overcome these defects "by ensuring that defendant understood that some appellate and collateral review survives an appeal waiver" ( People v Devane , 212 AD3d 894, 895 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 39 NY3d 1110 [2023]; see People v Ramjiwan , 209 AD3d 1176, 1177 [3d Dept 2022]; People v Palmer , 207 AD3d 802, 803 [3d Dept 2022], lv denied 39 NY3d 941 [2022]; People v Williams , 203 AD3d 1398, 1398-1399 [3d Dept 2022], lv denied 38 NY3d 1036 [2022]).

2022"The written appeal waiver executed by defendant was overbroad, as it indicated that the waiver was a complete bar to a direct appeal as well as to collateral relief on certain nonwaivable issues in both state and federal courts" ( People v Harris , 201 AD3d 1030, 1030 [2022], lvs denied 38 NY3d 950 , 952, 954 [2022]; see People v Bisono , 36 NY3d 1013 , 1017 [2020]; People v Mayo , 195 AD3d 1313, 1314 [2021]; People v Ghee , 195 AD3d 1244, 1244 [2021], lvs denied 37 NY3d 992 [2021]).

2022The written appeal waiver executed by defendant during the plea allocution is overly broad in several respects, including erroneously purporting to erect an absolute bar to a direct appeal and indicating that the appeal waiver precludes him from pursuing collateral relief in state and federal courts ( see People v Bisono , 36 NY3d 1013 , 1017-1018 [2020]; People v Thomas , 34 NY3d 545 , 565-566 [2019]; People v Anthony , 201 AD3d 1028, 1029 [2022]; People v Ghee , 195 AD3d 1244, 1244 [2021], lvs denied 37 NY3d 992 [2021]; People v Gamble , 190 AD3d 1022, 1024 [2021], lvs denied 36 NY3d 1095 ,

2022Defendant executed a written appeal waiver that was overbroad, inasmuch as it indicated that the waiver was a complete bar to a direct appeal as well as to collateral relief on certain nonwaivable issues in both state and federal courts ( see People v Bisono , 36 NY3d 1013 , 1017-1018 [2020]; People v Hilts , 200 AD3d 1306, 1306 [2021]; People v Lunan , 196 AD3d 969, 969 [2021]).

2022The written appeal waiver is overbroad in that it erroneously claims to be a complete bar to a direct appeal as well as collateral proceedings, and County Court did not overcome that defect "by ensuring that defendant understood that some appellate and collateral relief survives an appeal waiver" ( People v Lunan , 196 AD3d 969, 970 [2021]; accord People v Williams , 203 AD3d 1398, 1398-1399 [2022], lv denied 38 NY3d 1036 [2022]; see People v Blair , 205 AD3d 1227, 1228 [2022]).