Criminal Justice Insider

An in-depth review and analysis and of emerging topics in both federal and New York State criminal law. This blog explores developments in substantive and procedural criminal law, providing practical insights to the latest case law and statutory changes.

All That You Can’t Leave Behind: The Court of Appeals Issues New Guidance on Plea Waivers


One of the most fundamental rights that a criminal defendant gives up when they decide to plead guilty before trial is the right to appeal. An offer of a plea bargain given by a prosecutor almost always contains a waiver of the right to challenge the resultant conviction on appeal. So important is this waiver, that a judge accepting a defendant’s plea must explain it to the defendant as part of the entry of the plea. In a recent single decision covering three separate cases, the New York Court of Appeals clarified the contours of the appellate waiver and provided guidance on the explanation that a court must give to ensure the plea and the appellate waiver are procedurally proper.

As a threshold matter, a plea must be voluntary and free from coercion. As part of that analysis, it is incumbent on a court to ensure that the defendant understands both their rights and the precise nature of that which they are waiving when they enter a plea of guilty.

The waiver of the right to appeal is more complex than it appears at first blush. That which one waives when pleading guilty does not include all appellate rights forever. For example, when pleading guilty, a defendant does not waive the right to appeal the voluntariness of their plea. Nor do they waive the right to challenge the legality of their sentence. Or their competency to stand trial. Or the jurisdiction of the court. The list goes on. The Court of Appeals recently held that a court must accurately explain the contours of the appellate waiver in order for the plea and the waiver to be enforceable.

In People v. Thomas, People v. Green, and People v. Lang, all decided in an omnibus opinion authored by Chief Judge Janet DiFiore, and released on November 26, 2019, the Court of Appeals explored for the first time what language is sufficient to apprise criminal defendants with regard to the waiver of their appellate rights.

In Thomas, the defendant signed a written waiver of appeal which explained that he was waiving all appellate rights except those relating to speedy trial, the legality of the sentence, voluntariness of the plea, and his competency to stand trial. At the time of the plea, the trial court only asked if he had read the waiver and consulted with counsel as to its meaning and import. In Green, the trial court explained that the defendant was waiving “all rights to appeal.” The trial court then gave to Ms. Green a form with greater detail, but did not allocute her as to whether she understood the form’s contents. Finally, in Lang, the plea was handled by the same judge as in Green and the defendant signed the same form. The same explanation was employed by the trial court.

The Court of Appeals invalidated the appellate waivers in Green and Lang, but upheld the waiver in Thomas. The Court reasoned that in both Green and Lang the Court overstated the breadth of the appellate waiver to the extent any explanation was given at all. This created a scenario where the respective defendants in Green and Lang did not properly understand that which they were waiving. In Thomas, by contrast, the explanation was incomplete, but not overly broad. Further, the trial court took steps to ensure that Mr. Thomas understood the waiver during the proceedings.

The Court stopped short of advising the lower courts exactly what language would create a workable appellate waiver that is both complete and comprehensible to criminal defendants inexperienced in the law. However, the Court did point the New York State Unified Court System’s model colloquy which states that a waiver of an appeal gives up the right to have a review of “most claims of error.” This construction is neither overly broad nor incomprehensible.

In a somewhat stinging dissent as to the finding in Thomas, Judge Rowan Wilson wrote that “the game is not worth the candle” and appellate waivers should be barred in general. The jurisprudence surrounding them is sufficiently complex to make them unworkable and they create no efficiency in light of the numerous exceptions.

In both the decision, the concurrence and dissent, it was agreed that knowledgeable and experienced counsel are critical to the plea negotiation and entry process. We are happy to provide that insight and guidance should you, the reader, find yourself in need.

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12.04.2019  |  PRACTICE AREAS: Criminal Defense

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