understanding waiver in New York

2026We conclude that defendant's assertion lacks merit. " '[A] trial court need not engage in any particular litany' or catechism in satisfying itself that a defendant has entered a knowing, intelligent and voluntary appeal waiver"; rather, "a trial court 'must make certain that a defendant's understanding' of the waiver, along with the other 'terms and conditions of a plea agreement is evident on the face of the record' " ( People v Bradshaw , 18 NY3d 257, 265 [2011], quoting Lopez , 6 NY3d at 256 ).

2018It is the responsibility of the court to "make certain [of] a defendant's understanding of the waiver" and ensure "full appreciation of [its] consequences," though "a trial court need not engage in any particular litany or catechism in satisfying{**32 NY3d at 25} itself that a defendant has entered a knowing, intelligent and voluntary . . . waiver" ( People v Bradshaw , 18 NY3d 257, 264-265 [*4][2011] [internal quotation marks omitted]). [FN1] "After all, the trial court 'is in the best position to assess all of the relevant factors' " ( id. , quoting People v Callahan , 80 NY2d 273, 280 [1992

2026We conclude that defendant's assertion lacks merit. " '[A] trial court need not engage in any particular litany' or catechism in satisfying itself that a defendant has entered a knowing, intelligent and voluntary appeal waiver"; rather, "a trial court 'must make certain that a defendant's understanding' of the waiver, along with the other 'terms and conditions of a plea agreement is evident on the face of the record' " ( People v Bradshaw , 18 NY3d 257, 265 [2011], quoting Lopez , 6 NY3d at 256 ).

2017The defendant’s purported waiver of his right to appeal was invalid, as the record fails to establish that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v Maracle, 19 NY3d 925, 927-928 [2012]; People v Bradshaw, 18 NY3d 257, 272-273 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]). “ ‘An appeal waiver is not valid unless the defendant’s understanding of the waiver is evident on the face of the record’ ” (People v De La Rosa, 148 AD3d 927 [2017], quoting People v Little, 127 AD3d 1235 [2015]).

2018It is the responsibility of the court to "make certain [of] a defendant's understanding of the waiver" and ensure "full appreciation of [its] consequences," though "a trial court need not engage in any particular litany or catechism in satisfying{**32 NY3d at 25} itself that a defendant has entered a knowing, intelligent and voluntary . . . waiver" ( People v Bradshaw , 18 NY3d 257, 264-265 [*4][2011] [internal quotation marks omitted]). [FN1] "After all, the trial court 'is in the best position to assess all of the relevant factors' " ( id. , quoting People v Callahan , 80 NY2d 273, 280 [1992

2014“A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Bradshaw, 18 NY3d 257, 264 [2011]; People v Callahan, 80 NY2d 273, 280 [1992]). “ ‘Though a trial court need not engage in any particular litany’ or catechism in satisfying itself that a defendant had entered a knowing, intelligent and voluntary appeal waiver, a trial court ‘must, make certain that a defendant’s understanding’ of the waiver ... is evident on the face of the record” (People v Bradsh

2020In any event, contrary to the defendant's contentions, the record affirmatively demonstrates the defendant's understanding and waiver of certain constitutional rights, and the entry of a knowing, voluntary, and intelligent plea of guilty ( see People v Harris , 61 NY2d 9, 19-20 ; People v Sirico , 135 AD3d 19, 22 ; People v Isaiah S. , 130 AD3d 1081 ).

2020In any event, the record affirmatively demonstrates the defendant's understanding and waiver of certain constitutional rights, and the entry of a knowing, voluntary, and intelligent plea of guilty ( see People v Harris , 61 NY2d 9, 19-20 ; People v Sirico , 135 AD3d 19, 22 ; People v Isaiah S. , 130 AD3d 1081 ).

2021Contrary to the defendant's contentions, he was adequately advised of the constitutional rights he was forfeiting by pleading guilty ( see Boykin v Alabama , 395 US 238, 243 ; People v Flinn , 188 AD3d 1093 ; People v Anderson , 152 AD3d 616, 617 ), and the record affirmatively demonstrates the defendant's understanding and waiver of these rights ( see People v Flinn , 188 AD3d 1093 ; People v Sherman , 177 AD3d 777 , 779).

2020In any event, contrary to the defendant's contention, he was adequately advised of the constitutional rights he was forfeiting by pleading guilty ( see Boykin v Alabama , 395 US 238, 243 ), and the record affirmatively demonstrates the defendant's understanding and waiver of these rights ( People v Sherman , 177 AD3d 777 , 779).

2020In any event, contrary to the defendant's contentions, the record affirmatively demonstrates the defendant's understanding and waiver of certain constitutional rights, and the entry of a knowing, voluntary, and intelligent plea of guilty ( see People v Harris , 61 NY2d 9, 19-20 ; People v Sirico , 135 AD3d 19, 22 ; People v Isaiah S. , 130 AD3d 1081 ).

2020In any event, the record affirmatively demonstrates the defendant's understanding and waiver of certain constitutional rights, and the entry of a knowing, voluntary, and intelligent plea of guilty ( see People v Harris , 61 NY2d 9, 19-20 ; People v Sirico , 135 AD3d 19, 22 ; People v Isaiah S. , 130 AD3d 1081 ).

2021"In ascertaining whether such a waiver is knowing, voluntary and intelligent, the court must 'test an accused's understanding of the waiver' and be reasonably certain that [he or she] appreciates the dangers and disadvantages of giving up the fundamental right to counsel'" ( People v Grays , 162 AD3d at 1226, quoting People v Smith , 92 NY2d 516, 520 [1998]).

2018The inquiry must both "test an accused's understanding of the waiver and . . . provide a reliable basis for appellate review" ( People v Smith , 92 NY2d at 520 ; see People v Providence , 2 NY3d 579, 583 [2004]; People v Sawyer , 57 NY2d at 21 ).

2018The inquiry must both "test an accused's understanding of the waiver and . . . provide a reliable basis for appellate review" ( People v Smith , 92 NY2d at 520 ; see People v Providence , 2 NY3d 579, 583 [2004]; People v Sawyer , 57 NY2d at 21 ).

2018In ascertaining whether such a waiver is knowing, voluntary and intelligent, the court must "test an accused's understanding of the waiver" and be "reasonably certain that [he or she] appreciates the dangers and disadvantages of giving up the fundamental right to counsel" ( People v Smith , 92 NY2d 516, 520 [1998] [internal quotation marks and citations omitted]; see People v Slaughter , 78 NY2d 485, 491 [1991]; People v Sawyer , 57 NY2d 12, 21 [1982], cert denied 459 US 1178 [1983]).

2018The inquiry must both "test an accused's understanding of the waiver and . . . provide a reliable basis for appellate review" ( People v Smith , 92 NY2d at 520 ; see People v Providence , 2 NY3d 579, 583 [2004]; People v Sawyer , 57 NY2d at 21 ).

2018The court must also "delve[] into a defendant's age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver" ( People v Smith , 92 NY2d at 520 ; see People v Providence , 2 NY3d 579, 583 [2004]).

2014A written waiver may cure an ambiguity in an oral colloquy (see People v Ramos, 7 NY3d 737, 738 [2006]), but only if the oral colloquy on the record reflects the defendant’s understanding of its contents (see People v Bradshaw, 18 NY3d at 265, 267 ; People v Nugent, 109 AD3d 625, 625 [2013]; People v Parris, 106 AD3d 555, 556 [2013]; cf. People v Simmons, 113 AD3d 420 [2014]; People v Morey, 110 AD3d 1378 [2013]).

2014A written waiver may cure an ambiguity in an oral colloquy (see People v Ramos, 7 NY3d 737, 738 [2006]), but only if the oral colloquy on the record reflects the defendant’s understanding of its contents (see People v Bradshaw, 18 NY3d at 265, 267 ; People v Nugent, 109 AD3d 625, 625 [2013]; People v Parris, 106 AD3d 555, 556 [2013]; cf. People v Simmons, 113 AD3d 420 [2014]; People v Morey, 110 AD3d 1378 [2013]).

2014A written waiver may cure an ambiguity in an oral colloquy (see People v Ramos, 7 NY3d 737, 738 [2006]), but only if the oral colloquy on the record reflects the defendant’s understanding of its contents (see People v Bradshaw, 18 NY3d at 265, 267 ; People v Nugent, 109 AD3d 625, 625 [2013]; People v Parris, 106 AD3d 555, 556 [2013]; cf. People v Simmons, 113 AD3d 420 [2014]; People v Morey, 110 AD3d 1378 [2013]).

2014A written waiver may cure an ambiguity in an oral colloquy (see People v Ramos, 7 NY3d 737, 738 [2006]), but only if the oral colloquy on the record reflects the defendant’s understanding of its contents (see People v Bradshaw, 18 NY3d at 265, 267 ; People v Nugent, 109 AD3d 625, 625 [2013]; People v Parris, 106 AD3d 555, 556 [2013]; cf. People v Simmons, 113 AD3d 420 [2014]; People v Morey, 110 AD3d 1378 [2013]).

2014A written waiver may cure an ambiguity in an oral colloquy (see People v Ramos, 7 NY3d 737, 738 [2006]), but only if the oral colloquy on the record reflects the defendant’s understanding of its contents (see People v Bradshaw, 18 NY3d at 265, 267 ; People v Nugent, 109 AD3d 625, 625 [2013]; People v Parris, 106 AD3d 555, 556 [2013]; cf. People v Simmons, 113 AD3d 420 [2014]; People v Morey, 110 AD3d 1378 [2013]).

2014A written waiver may cure an ambiguity in an oral colloquy (see People v Ramos, 7 NY3d 737, 738 [2006]), but only if the oral colloquy on the record reflects the defendant’s understanding of its contents (see People v Bradshaw, 18 NY3d at 265, 267 ; People v Nugent, 109 AD3d 625, 625 [2013]; People v Parris, 106 AD3d 555, 556 [2013]; cf. People v Simmons, 113 AD3d 420 [2014]; People v Morey, 110 AD3d 1378 [2013]).

2012Here, in view of the fleeting reference to defendant’s appeal waiver and absence of any acknowledgment by defendant that he understood the ramifications of the waiver, we cannot conclude that he knowingly, voluntarily and intelligently waived his right to appeal (see People v Burton, 93 AD3d 949, 949 [2012], lv denied 19 NY3d 958 [2012]).

2012Here, in view of the fleeting reference to defendant’s appeal waiver and absence of any acknowledgment by defendant that he understood the ramifications of the waiver, we cannot conclude that he knowingly, voluntarily and intelligently waived his right to appeal (see People v Burton, 93 AD3d 949, 949 [2012], lv denied 19 NY3d 958 [2012]).

2020In any event, contrary to the defendant's contentions, the record affirmatively demonstrates the defendant's understanding and waiver of certain constitutional rights, and the entry of a knowing, voluntary, and intelligent plea of guilty ( see People v Harris , 61 NY2d 9, 19-20 ; People v Sirico , 135 AD3d 19, 22 ; People v Isaiah S. , 130 AD3d 1081 ).

2020In any event, the record affirmatively demonstrates the defendant's understanding and waiver of certain constitutional rights, and the entry of a knowing, voluntary, and intelligent plea of guilty ( see People v Harris , 61 NY2d 9, 19-20 ; People v Sirico , 135 AD3d 19, 22 ; People v Isaiah S. , 130 AD3d 1081 ).

2017The court then adequately advised the defendant with respect to both pleas of guilty of the rights he was surrendering by pleading guilty, and the record affirmatively demonstrates the defendant’s understanding and waiver of these constitutional rights, and the entry of a knowing, voluntary, and intelligent plea of guilty (see People v Harris, 61 NY2d 9, 19-20 [1983]; People v Sirico, 135 AD3d 19, 22 [2015]; People v Isaiah S., 130 AD3d 1081 [2015]; People v Jackson, 114 AD3d at 807-808 ).

2016In any event, since the County Court expressly advised the defendant of the Boykin rights and other constitutional rights that she was waiving by pleading guilty, and the record affirmatively demonstrates the defendant’s understanding and waiver of these constitutional rights, we find that the plea of guilty was knowingly, voluntarily, and intelligently entered (see People v Harris, 61 NY2d 9, 19-20 [1983]; People v Sirico, 135 AD3d at 22 ; People v Isaiah S., 130 AD3d at 1082 ; People v Jackson, 114 AD3d 807, 807-808 [2014]).

2019Although the record reflects that the defendant had a history of mental impairment, his responses during the plea proceeding were coherent and appropriate, and there is no basis in the record to support a conclusion that, at the time of the plea proceeding, the defendant lacked an understanding of the nature or the consequences of his plea of guilty ( see People v DeBenedetto , 120 AD3d 1428, 1429 ; People v Brooks , 89 AD3d 747, 747-748 ; People v Rodriguez , 83 AD3d 449 ).

2017Furthermore, while the defendant had been prescribed medications by a psychiatrist, there is no basis in the record to support the conclusion that, at the time of the plea proceeding, the defendant lacked the capacity to understand the nature of the proceeding or the consequences of his pleas (see People v DeBenedetto, 120 AD3d 1428, 1429 [2014]).

2018In ascertaining whether such a waiver is knowing, voluntary and intelligent, the court must "test an accused's understanding of the waiver" and be "reasonably certain that [he or she] appreciates the dangers and disadvantages of giving up the fundamental right to counsel" ( People v Smith , 92 NY2d 516, 520 [1998] [internal quotation marks and citations omitted]; see People v Slaughter , 78 NY2d 485, 491 [1991]; People v Sawyer , 57 NY2d 12, 21 [1982], cert denied 459 US 1178 [1983]).

1998When a record lacks the requisite “searching inquiry” or fails to measure up to the prescribed standards, a waiver of the right to counsel will be deemed ineffective (see, id.; People v Slaughter, supra).

2017The record does not demonstrate that the defendant understood the nature of the right to appeal and the consequences of waiving it (see People v De La Rosa, 148 AD3d 927 [2017]; People v Cuevas-Alcantara, 136 AD3d 650 [2016]; People v Little, 127 AD3d 1235 [2015]; People v Quezada, 122 AD3d 948 [2014]; People v Brown, 122 AD3d 133 [2014]).

2015Here, the trial court’s statement to the defendant that *1236 he was giving up his right to appeal, followed by its inquiry as to whether his attorney had explained that right to him, was insufficient to demonstrate a valid waiver (see People v Brown, 122 AD3d 133, 141 [2014]; People v Oquendo, 105 AD3d 447, 448 [2013]; People v Vasquez, 101 AD3d 1054, 1054-1055 [2012]; People v Boustani, 300 AD2d 313, 314 [2002]).

2026Here, in [*2] eliciting defendant's understanding during the oral colloquy, which, as noted above, generally followed the model colloquy, the court appropriately explained and distinguished a waivable severity of sentence claim and a nonwaivable legality of sentence claim inasmuch as it clarified that defendant was giving up the right to appellate review of a claim that "the sentence imposed was harsh or excessive," which would thereby normally render the sentence final, and thereafter contrasted the typical finality of the sentence in that regard with a claim that the sentence was illegal, wh

2021Although the Court of Appeals has "eschewed application of any rigid formula and endorsed the use of a nonformalistic, flexible inquiry," it has nevertheless required that the trial court "accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication" ( People v Crampe , 17 NY3d at 482 [internal quotation marks and citations omitted]).