Opinion
No. 97 SSM 14 No. 98 SSM 15 No. 99 SSM 16 No. 100 SSM 17 No. 106 SSM 18 No. 101 SSM 19 No. 102 SSM 20 No. 103 SSM 21 No. 104 SSM 22 No. 105 SSM 28
12-15-2020
The PEOPLE of the State of New York, Respondent, v. Jose L. BISONO, Appellant. The People of the State of New York, Respondent, v. Trevis D. Baker, Appellant. The People of the State of New York, Respondent, v. Jeffrey R. Magee, Appellant. The People of the State of New York, Respondent, v. Joshua L. Miller, Appellant. The People of the State of New York, Respondent, v. Todd Daniels, Appellant. The People of the State of New York, Respondent, v. Zestra Hardin, Appellant. The People of the State of New York, Respondent, v. Nolis Ogando, Appellant. The People of the State of New York, Respondent, v. Joshua D. Biaselli, Appellant. The People of the State of New York, Respondent, v. Isaias Torres, Appellant. The People of the State of New York, Respondent, v. Lance Rodriguez, Appellant.
OPINION OF THE COURT
MEMORANDUM.
In each appeal, the order of the Appellate Division should be reversed and the case remitted to that court for further proceedings in accordance with this memorandum.
The waivers of the right to appeal were invalid and unenforceable pursuant to our analysis in People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019]. It is well-settled that "a waiver of the right to appeal is not an absolute bar to the taking of a first-tier direct appeal" ( id., at 558, 122 N.Y.S.3d 226, 144 N.E.3d 970, citing People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ; People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ; People v. Hansen, 95 N.Y.2d 227, 230–231, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ). Nonetheless, in each case, among other infirmities, the rights encompassed by an appeal waiver were mischaracterized during the oral colloquy and in written forms executed by defendants, which indicated the waiver was an absolute bar to direct appeal, failed to signal that any issues survived the waiver and, in the Queens and Orleans Counties cases, advised that the waiver encompassed "collateral relief on certain nonwaivable issues in both state and federal courts" ( Thomas, 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ), containing language similar to the waivers invalidated in the Thomas companion cases, Lang and Green. Viewing these deficiencies in the context of the record in each case and considering the totality of the circumstances, including in several cases defendants' significant mental health issues (see People v. Bradshaw, 18 N.Y.3d 257, 262, 273, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ), we cannot say that "defendants comprehended the nature [and consequences] of the waiver of appellate rights" ( Thomas, at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970, quoting People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Accordingly, we reverse and remit to the Appellate Division for consideration of issues raised but not decided on the appeal to that court due to
In Daniels , we disagree with the dissent's opinion that the oral colloquy "compares favorably" to that in People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] or that the court "acknowledged" that an unlawful sentence claim could be appealed (J. Garcia partially dissenting op. at 1025, 140 N.Y.S.3d at 441–42, 164 N.E.3d at 246–47). While the written waiver contained no affirmative misstatements, the form cannot be viewed in isolation but is only one component to be considered in the totality of the circumstances, which, in this case, also included – not merely ambiguous statements or shorthand pronouncements – but clearly inaccurate advisements concerning (among other things) a purported waiver of the right to counsel and a vulnerable defendant with a serious mental health condition. It is the partial dissent that appears to have eschewed an "individual assessment of the voluntariness of ... defendant's waiver" (J. Garcia partially dissenting op. at 1019, 140 N.Y.S.3d at 436, 164 N.E.3d at 242) by analyzing each component in a vacuum. While we express no view concerning whether our precedent was properly applied in the litany of Appellate Division cases cited by our colleague (which are not before us), even a cursory review of the landscape reveals that, in the wake of Thomas, the Appellate Division is upholding some appeal waivers and deeming others unenforceable based on the totality of the circumstances, an approach we reaffirmed in Thomas and follow in these cases.
the enforcement of defendants' appeal waivers.
In People v. Torres and People v. Biaselli , defendants' challenges to the Appellate Division's resolution of other issues (relating to an order of protection and a sentencing promise, respectively), which are not preserved, are beyond further review by this Court.
GARCIA, J. (dissenting in People v. Daniels and otherwise concurring in result):
In each of the ten cases under review here, the Appellate Division upheld the validity of the defendant's waiver of the right to appeal. Today, we reverse all ten of those decisions. The rules changed. As the majority decision makes clear, the waivers in these cases are now "invalid and unenforceable pursuant to our analysis in People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019]" (majority mem. at 1017, 140 N.Y.S.3d at 435, 164 N.E.3d at 241). Thomas did indeed drastically change New York's approach to appeal waivers, for the most part making any individual assessment of the voluntariness of each defendant's waiver irrelevant. While I continue to disagree with the majority's reasoning in Thomas, I agree that it controls here in nine of the cases and, in those nine, I concur in result. In the tenth case, People v. Daniels , the majority goes beyond what even Thomas requires, essentially closing off one of the few remaining avenues for appellate courts to uphold voluntary waivers of the right to appeal. In Daniels, therefore, I dissent.
I.
In People v. Thomas, this Court wrote reassuringly that "[o]ur primary task is to determine whether, under the circumstances of each case, the mischaracterizations impacted the knowing and voluntary nature of the three appeal waivers" at issue ( 34 N.Y.3d at 552, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). We maintained that we were simply "[a]dhering to our well-established precedent in reviewing the validity of appeal waivers" in upholding the waiver in one case and holding the waivers invalid in the other two ( id. ). In dissent, I expressed concern that we were abandoning our "sensible standard" for evaluating appeal waivers and substituting an approach that "examines whether the trial court's description of the waiver was ‘improper’ or somehow ‘irredeemable under the circumstances’ " ( id. at 573, 122 N.Y.S.3d 226, 144 N.E.3d 970 [Garcia, J., dissenting]). I anticipated that "[a]ny waiver resembling those in Green and Lang [would be] prone to attack" ( id. at 585, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see majority mem. at 1018, 140 N.Y.S.3d at 435, 164 N.E.3d at 241 [waivers rejected in the ten cases here "contain( ) language similar to the waivers invalidated in the Thomas companion cases, Lang and Green "]). This, in turn, would unravel defendants' bargains, undermine the finality of their convictions, and enlarge the case load of our already burdened appellate courts ( Thomas, 34 N.Y.3d at 585–586, 122 N.Y.S.3d 226, 144 N.E.3d 970 [Garcia, J., dissenting]). Thomas has taken the predictable toll. II.
Both convictions were affirmed after remittal to the Appellate Division (see People v. Lang, 178 A.D.3d 1362, 1363, 112 N.Y.S.3d 632 [4th Dept. 2019] [holding that the defendant's contention that he was improperly denied youthful offender status was unpreserved and, in any event, without merit]; People v. Green, 178 A.D.3d 1354, 1355, 112 N.Y.S.3d 635 [4th Dept. 2019] [holding that the defendant's sentence was not unduly harsh or severe]).
In the year since the case was decided, appellate courts in New York, citing
Thomas, have invalidated 90 appeal waivers.
Citations to those cases are set forth in an Appendix to this writing.
It is clear to the Appellate Division Departments that the rules have changed:
"We have previously held that an overbroad appeal waiver would remain knowing, intelligent and voluntary, but that any nonwaivable rights would be ‘excluded from [its] scope’ ( People v. Gruber, 108 A.D.3d 877, 878, 969 N.Y.S.2d 586 [2013], lv denied 22 N.Y.3d 956, 977 N.Y.S.2d 187, 999 N.E.2d 552 [2013] ; see People v. Norton, 9 A.D.3d 741, 742, 779 N.Y.S.2d 865 [2004] ; People v. Wagoner, 6 A.D.3d 985, 986, 777 N.Y.S.2d 522 [2004] ; People v. Umber, 2 A.D.3d 1051, 1052, 769 N.Y.S.2d 632 [2003], lv denied 2 N.Y.3d 747, 778 N.Y.S.2d 472, 810 N.E.2d 925 [2004] ). The Court of Appeals has recently advised, however, that an appeal waiver is not ‘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’ ( People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ). Accordingly, we are constrained to hold that defendant's appeal waivers are invalid given the confusion as to their impact" ( People v. Barrales, 179 A.D.3d 1313, 1314–1315, 118 N.Y.S.3d 263 [3d Dept. 2020] ).
In another example, the Appellate Division, having previously upheld an appeal waiver, vacated that order after Thomas was decided, and instead held that same appeal waiver invalid because the trial court "mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal, and failed to inform the defendant that appellate review remained available for certain issues" ( People v. Robinson, 189 A.D.3d 893, ––––, 133 N.Y.S.3d 448, 2020 N.Y. Slip Op. 07227, *1 [2d Dept. 2020], vacating 184 A.D.3d 779, 124 N.Y.S.3d 200 [2d Dept. 2020] ).
The effect can also be seen in the general approach taken by appellate courts in finding waivers invalid. Rather than engage in an assessment of the voluntariness of the individual waiver, courts attempt to apply the "checklist of errors" identified in Thomas. Unfortunately, other than identifying "errors," that case offers no guidance as to how to assess those misstatements in determining whether the waiver is somehow "irredeemable" (see Thomas, 34 N.Y.3d at 584, 122 N.Y.S.3d 226, 144 N.E.3d 970 [Garcia, J., dissenting] [noting that the majority holding "leaves lower courts with an unfamiliar and undefined new framework"]). The list includes statements that "defendants' waivers would (1) operate as ‘an absolute bar to the taking of a direct appeal,’ (2) result in a ‘loss of attendant rights to counsel and poor person relief,’ and (3) impact defendants' ‘postconviction relief separate from the direct appeal’ " ( id. at 577, 122 N.Y.S.3d 226, 144 N.E.3d 970, quoting id. at 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [majority opinion]).
Appellate courts, without further guidance as to how to weigh these "misstatements," have in many cases identified a single—now fatal—flaw in the waiver process with only a passing reference to our decision in Thomas. For example, in People v. Dixon, 184 A.D.3d 854, 855 [2d Dept. 2020], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 405, 152 N.E.3d 1206 [2020] ), the court noted that,
"[w]hen explaining the waiver of the right to appeal, the Supreme Court stated
to the defendant, ‘[s]o what this means is you're not going to have any help or any lawyer to help you effect an appeal on the conviction or any lawful sentence that I impose [and] [n]obody is going to provide you with transcripts or any other help.’ "
In invalidating the waiver, the court held that "[t]hese statements ‘utterly mischaracterized the nature of the right a defendant was being asked to cede’ " ( id. , quoting Thomas, 34 N.Y.3d at 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [internal quotation marks omitted]; see also People v. Brown, 180 A.D.3d 1341, 1341, 115 N.Y.S.3d 734 [4th Dept. 2020] [finding the waiver "irredeemable" under Thomas because "the court erroneously informed defendant that, by waiving the right to appeal, he could obtain no further review of the conviction or sentence by a higher court—crucially omitting any mention of the several rights that survive the waiver of the right to appeal"], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 19, 148 N.E.3d 483 [2020] ; People v. Sealey, 187 A.D.3d 1067, 1067, 131 N.Y.S.3d 179 [2d Dept. 2020] ["The defendant's purported waiver of his right to appeal was invalid because the County Court's oral colloquy mischaracterized the appellate rights waived as encompassing a bar to filing an appellate brief and the loss of attendant rights to counsel and poor person relief"]; People v. Walder, 186 A.D.3d 1272, 1272, 127 N.Y.S.3d 894 [4th Dept. 2020] ["The defendant's purported waiver of his right to appeal was invalid because the County Court's colloquy mischaracterized the appellate rights waived as encompassing a bar to filing an appellate brief and the loss of attendant rights to counsel and poor person relief"]; Robinson, 189 A.D.3d at ––––, 133 N.Y.S.3d 448, 2020 N.Y. Slip Op., *1 [similar]; People v. Thomas, 189 A.D.3d 897, ––––, 132 N.Y.S.3d 859, 2020 N.Y. Slip Op. 07230, *1 [2d Dept. 2020] [similar]; People v. Pellew, 187 A.D.3d 1060, 1060, 131 N.Y.S.3d 266 [2d Dept. 2020] [similar]; People v. Leiva, 184 A.D.3d 731, 731, 124 N.Y.S.3d 207 [2d Dept. 2020] [similar], lv denied 35 N.Y.3d 1067, 129 N.Y.S.3d 404, 152 N.E.3d 1205 [2020] ; People v. Baptiste, 181 A.D.3d 696, 696, 117 N.Y.S.3d 882 [2d Dept. 2020] [similar], lv denied 35 N.Y.3d 1092, 131 N.Y.S.3d 285, 155 N.E.3d 778 [2020] ; People v. Suarez–Montoya, 183 A.D.3d 765, 765, 121 N.Y.S.3d 914 [2d Dept. 2020] ["The defendant's waiver of the right to appeal was invalid, because the Supreme Court incorrectly stated during the discussion of the appeal waiver that the waiver encompassed post-conviction motions"]). In addition to these 90 cases, in another 20 cases, although the waiver was "upheld," the court nevertheless went on to consider the merits of the appeal—negating any benefit of the waiver (see e.g. People v. Sylvester, 187 A.D.3d 522, 525, 133 N.Y.S.3d 257 [1st Dept. 2020] ; People v. Edey, 183 A.D.3d 430, 430, 121 N.Y.S.3d 600 [1st Dept. 2020], lv denied 35 N.Y.3d 1044, 127 N.Y.S.3d 836, 151 N.E.3d 517 [2020] ; People v. Scott, 180 A.D.3d 1345, 1345, 115 N.Y.S.3d 739 [4th Dept. 2020], lv denied 35 N.Y.3d 995, 125 N.Y.S.3d 630, 149 N.E.3d 391 [2020] ).
In the majority of these cases, the defendant's sole claim was that the bargained-for sentence was unduly harsh (see e.g. Brown, 180 A.D.3d at 1341, 115 N.Y.S.3d 734 ; Sealey, 187 A.D.3d at 1067, 131 N.Y.S.3d 179 ; Robinson, 189 A.D.3d at ––––, 133 N.Y.S.3d 448, 2020 N.Y. Slip Op. 07227, *1 ; Pellew, 187 A.D.3d at 1060, 131 N.Y.S.3d 266 ; Leiva, 184 A.D.3d at 713, 124 N.Y.S.3d 207; Baptiste, 181 A.D.3d at 696, 117 N.Y.S.3d 882 ; Suarez–Montoya, 183 A.D.3d at 765, 121 N.Y.S.3d 914 ; Scott, 180 A.D.3d at 1345, 115 N.Y.S.3d 739 ). However, substantive issues, such as suppression, have also survived purported
waiver (see e.g. People v. Chy, 184 A.D.3d 664, 666–667, 125 N.Y.S.3d 130 [2d Dept. 2020] [invalidating waiver, granting suppression, and vacating plea]; People v. Weeks, 182 A.D.3d 539, 540–542, 122 N.Y.S.3d 347 [2d Dept. 2020] [same]).
This account of the fallout from Thomas is not meant as criticism: Routine invalidation of plea waivers is unavoidable given the lack of any workable analytical framework.
III.
Here, too, Thomas compels us to summarily invalidate nine appeal waivers and remit for consideration of the merits by the Appellate Division. As with the scores of cases reversed by appellate courts, we do so with a nod to Thomas and a cite to mischaracterizations in the defendants' waivers. The cases are representative of the practical considerations abandoned by Thomas.
In eight out of the nine cases, the defendant seeks to challenge his sentence as excessive (see People v. Bisono ; People v. Baker ; People v. Magee ; People v. Miller ; People v. Hardin ; People v. Ogando , People v. Biaselli ; People v. Torres ). In all eight of these cases, the defendant's written waiver included the right to challenge the sentence imposed—in six of the eight, the oral colloquy reinforced this specific waiver (see Thomas, 34 N.Y.3d at 583, 122 N.Y.S.3d 226, 144 N.E.3d 970 [Garcia, J., dissenting] [pointing out that defendant Green's specific acknowledgment of his waiver of right to raise excessive sentence issue on appeal was not enough to prevent reversal and remand to Appellate Division for consideration of whether sentence was excessive]; see also Barrales, 179 A.D.3d at 1314, 118 N.Y.S.3d 263 ). The record in each case demonstrates that the defendant had the opportunity to discuss the waiver with counsel, and each defendant acknowledged his understanding of the waiver of the appeal right. Each defendant received a sentence substantially less than the maximum he faced based on the charges (see e.g. People v. Ogando [defendant, who was charged with second-degree murder, first-degree manslaughter, and first-degree gang assault, and faced a maximum sentence of life in prison without the possibility of parole, pleaded guilty to first-degree gang assault and seeks to challenge, among other things, the bargained-for sentence of eight years' imprisonment]; People v. Hardin [defendant, who was charged with second-degree burglary and faced a maximum sentence of fifteen years' imprisonment, pleaded guilty to attempted second-degree burglary and seeks to challenge the bargained-for sentence of two years' imprisonment]; see generally People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] [noting that "relevant factors" in assessing an appeal waiver include "the nature ... of the agreement" and "the reasonableness of the bargain"]). Several defendants had extensive criminal histories (see e.g. People v. Baker [second felony offender]; People v. Magee [same]; People v. Hardin [46 prior misdemeanor convictions in New York State]; see generally People v. Sanders, 25 N.Y.3d 337, 342, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] [considering the defendant's background, including his "extensive experience with the criminal justice system," in assessing voluntariness of appeal waiver]). Yet each waiver is deemed—for all purposes—invalid given the failure to specifically cure some unexplained combination of "infirmities" (see majority mem. at 1017, 140 N.Y.S.3d at 435, 164 N.E.3d at 241). Any lingering doubt that Thomas worked a sea change in our approach to appeal waivers has been dispelled.
IV.
Reinforcing the routine invalidation of appeal waivers that must necessarily result
from our decision in Thomas is damaging enough. To make matters worse, the majority's reversal in People v. Daniels expands Thomas 's scope, making crystal clear that a single error may be fatal to an appeal waiver regardless of the other circumstances demonstrating its voluntariness. It also casts further doubt on the continuing validity of this court's pre- Thomas waiver precedent, particularly People v. Ramos, 7 N.Y.3d 373, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006]. Accordingly, I dissent and would affirm in Daniels.
Defendant Daniels was charged with one count of first-degree assault (class B felony), one count of first-degree reckless endangerment (class D felony), one count of first-degree criminal use of a firearm (class B felony), and three counts of second-degree criminal possession of a weapon (class C felony), and faced a maximum prison sentence of 25 years. He pleaded guilty to second-degree criminal possession of a weapon (class C felony) and executed a written and oral appeal waiver, in exchange for which he received the bargained-for prison sentence of five years. He had two prior convictions, including one felony conviction. Although he had a history of mental health problems, defendant and his counsel assured the court that he was lucid and understood the proceedings. It also appears that defendant submitted a memorandum to the court, prepared by a psychotherapist prior to his guilty plea, that found he was lucid, coherent, and compliant with his medications.
During the oral colloquy, the court informed defendant that he was being asked to "waive [his] right to appeal this judgment of conviction, and any lawful sentence I impose thereon" in order to "induce the District Attorney to reduce the severity of the charges." The court explained that waiving the right to appeal "means [that] nobody is going to provide you with an attorney, transcripts, any help whatsoever to appeal the sentence, or this conviction." Defendant agreed that he understood the court's explanation and confirmed that he understood "the rights [he was] waiving." He also signed and executed a written waiver, which he "read ... over and discussed with [his] lawyer" and "signed in open court on advice of counsel." That written waiver provided:
"I have been advised of my right to appeal. I understand that after a conviction by a guilty plea, a defendant has the right to appeal and have the proceedings reviewed by an appellate court. I understand that the right to appeal includes the right
to have an attorney appointed, if I cannot afford one, and the right to submit a brief and argue before an appellate court issues relating to my sentence and conviction. I understand that pleading guilty does not waive the right to appeal, which is separate and distinct from my rights to trial, but that the waiver of the right to appeal is a condition of this particular plea agreement and I understand that my conviction and sentence will be final."
On appeal, defendant seeks to challenge the excessiveness of his sentence.
The oral colloquy here compares favorably with that in Ramos. In Ramos, the court stated that defendant was "giving up any and all rights to appeal this conviction and sentence; in other words, this is now final." The court further stated that "[o]nce you agree to do this, not only will there not be any trial but there won't be any appeals; do you understand that this is final?" ( People v. Bradshaw, 18 N.Y.3d 257, 269–270, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011, Read, J., dissenting] [quoting the Ramos colloquy]). While the language in the Ramos colloquy unequivocally indicates an absolute bar to appellate review,
the colloquy at issue here acknowledged that an unlawful sentence may be appealed. Although the court overstated the loss of the right to counsel and poor person relief, the court, unlike in Ramos, elicited defense counsel's "professional opinion" that his client's waiver was "knowing, intelligent and voluntary," and confirmed that defendant "underst[ood] the rights [he was] waiving" (see Thomas, 34 N.Y.3d at 564, 122 N.Y.S.3d 226, 144 N.E.3d 970 ["The court's oral colloquy, specifically its inquiry of Thomas and resulting assurances that he had ample opportunity to discuss with counsel the meaning of the waiver and appellate rights he was surrendering, was sufficient to support a knowing and voluntary waiver under the totality of the circumstances"]).
In Ramos, we held that, "[e]ven if there were any ambiguity in the sentencing court's colloquy," the waiver of the right to appeal was valid because "defendant executed a detailed written waiver ... stat[ing] that defendant had the right to appeal, explain[ing] the appellate process and confirm[ing] that defense counsel fully advised him of the right to take an appeal under the laws of the State of New York" ( 7 N.Y.3d at 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ). Apart from confirming that defense counsel advised defendant of the right to appeal—which the court here orally confirmed—the waiver in Daniels is substantially similar to the one that the Ramos Court held was sufficient to cure any ambiguities in the oral colloquy. Specifically, the written waiver in Ramos stated:
Not only is the written waiver language here similar to Ramos, but its description of the right to appeal also tracks a portion of the Model Colloquy, the use of which we expressly endorsed in Thomas. The version of the Model Colloquy commended in Thomas provides:
" ‘An appeal is a proceeding before a higher court, an appellate court. If a defendant cannot afford the costs of an appeal or of a lawyer, the state will bear those costs. On an appeal, a defendant may, normally through his/her lawyer, argue that an error took place in this court which requires a modification or reversal of the conviction. A reversal would require either new proceedings in this court or a dismissal’ and provides that the court should instruct the defendant that, ‘as a condition of the plea agreement, [the defendant is being] asked to waive [the] right to appeal’ " (34 N.Y.3d at 567 n. 7, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).
"I hereby waive my right to appeal. I execute this waiver after being advised by the court and my attorney of the nature of the rights I am giving up. I have been advised of my right to take an appeal ( CPL 450.10 ), to prosecute the appeal as a poor person and to have an attorney assigned in the event that I am indigent, and to submit a brief and/or argue before an appellate court on any issues relating to my conviction and sentence. I make this waiver voluntarily, knowingly and of my own free will" ( Bradshaw, 18 N.Y.3d at 270 [2011, 938 N.Y.S.2d 254, 961 N.E.2d 645, Read, J., dissenting] [quoting the Ramos written waiver]).
The Ramos waiver and Model Colloquy, like the written waiver here, all define the right to appeal in a similar manner, and explain the distinctness of the appeal right from the right to a trial (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; NY Model Colloquies, Waiver of Right to Appeal). The present waiver does not contain any affirmative misstatements. Although it does not detail the rights that survive the appeal waiver, we have never required a written waiver to do so (see Thomas, 34 N.Y.3d at 558 n 1, 122 N.Y.S.3d 226, 144 N.E.3d 970 ["courts need ‘not include a
specific enumeration of each of the rights being waived’ for a guilty plea" and there is no reason "for holding the enforceability of waivers of the statutory right to appeal to a standard more stringent"]; see also Ramos, 7 N.Y.3d at 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ).
The record here contains a single mischaracterization of the appeal right, namely the implication in the oral colloquy that defendant was losing the attendant right to appellate counsel—an error that was not repeated in the written waiver. This single misstatement does not rise to the level of the "utter mischaracterizations" of the appeal right that resulted in reversals in Lang and Green, which involved multiple misstatements in the oral colloquy that were repeated in the written waivers (see Thomas, 34 N.Y.3d at 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). On the contrary, here, the written waiver explained the distinct appeal right. Moreover, the oral colloquy implied that some rights, including the right to challenge an illegal sentence, were not waived, and the court assured that defendant was explained his right to appeal, understood that right, and was voluntarily waiving that right. The record further reflects that the plea deal that defendant received was extremely favorable and defendant had substantial prior experience with the criminal justice system—both "relevant factors surrounding the waiver" bearing on "the experience and background of the accused" ( Sanders, 25 N.Y.3d at 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; see Thomas, 34 N.Y.3d at 563, 122 N.Y.S.3d 226, 144 N.E.3d 970 ["Our requisite analysis for determining the validity of the waiver remains focused on whether all the relevant circumstances reveal a knowing and voluntary waiver"]). All of these circumstances, considered together, demonstrate that defendant's waiver was knowingly, voluntarily, and intelligently made (see Ramos, 7 N.Y.3d at 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [waiver valid where the "defendant's written waiver stated that defendant had the right to appeal, explained the appellate process and confirmed that defense counsel fully advised him of the right to take an appeal"]). Nevertheless, along with the nine other waivers, the majority finds the waiver in Daniels irredeemable, making clear that one misstatement from the checklist invalidates a voluntary waiver.
V.
Each of the waivers in the ten cases we consider today was upheld by the Appellate Division prior to our decision in Thomas. We reverse in all of them. Each of those ten defendants may now make substantive arguments to the Appellate Division, including that the bargained-for sentence is "unduly harsh," while retaining the benefit of a plea to significantly reduced charges. Routine invalidation of appeal waivers will find not only renewed, but increased support from today's majority decision, and will continue until trial courts fully adopt the appropriate catechism, namely the Model Colloquy (see Thomas, 34 N.Y.3d at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see also People v. Cipolla, 186 A.D.3d 1136, 1136, 127 N.Y.S.3d 368 [4th Dept. 2020] [noting that the "better practice" would be for the court to use the Model Colloquy]; People v. Somers, 186 A.D.3d 1111, 1112, 127 N.Y.S.3d 399 [4th Dept. 2020] [same]). The repercussions for an already overburdened appellate docket are self-evident.
Appendix
Appendix *
1. People v. Soler, 189 A.D.3d 1086, 133 N.Y.S.3d 833 (2d Dept. 2020)
2. People v. Robinson, 189 A.D.3d 893, 133 N.Y.S.3d 448 (2d Dept. 2020), vacating 184 A.D.3d 779, 124 N.Y.S.3d 200 (2d Dept. 2020)
3. People v. Guevara–Lopez, 189 A.D.3d 893, 133 N.Y.S.3d 444 (2d Dept. 2020)
4. People v. Garcia, 189 A.D.3d 879, 137 N.Y.S.3d 136 (2d Dept. 2020)
5. People v. Perrella, 188 A.D.3d 1263, 132 N.Y.S.3d 800 (2d Dept. 2020)
6. People v. Davis, 188 A.D.3d 1731, 136 N.Y.S.3d 638 (4th Dept. 2020)
7. People v. Jones, 188 A.D.3d 1682, 132 N.Y.S.3d 380 (4th Dept 2020)
8. People v. Douglas, 188 A.D.3d 1671, 132 N.Y.S.3d 355 (4th Dept. 2020)
9. People v. Murphy, 188 A.D.3d 1668, 135 N.Y.S.3d 729 (4th Dept. 2020)
10. People v. Hunt, 188 A.D.3d 1648, 132 N.Y.S.3d 384 (4th Dept. 2020)
11. People v. Fishbein, 188 A.D.3d 909, 132 N.Y.S.3d 330 (2d Dept. 2020)
12. People v. Daniel, 188 A.D.3d 908, 132 N.Y.S.3d 303 (2d Dept. 2020)
13. People v. Gaindarpersaud, 188 A.D.3d 718, 131 N.Y.S.3d 652 (2d Dept. 2020)
14. People v. Brooks, 187 A.D.3d 1587, 133 N.Y.S.3d 690 (4th Dept. 2020)
15. People v. Harlee, 187 A.D.3d 1586, 131 N.Y.S.3d 760 (4th Dept. 2020)
16. People v. Vargas, 187 A.D.3d 1222, 131 N.Y.S.3d 218 (2d Dept. 2020)
17. People v. Underwood, 187 A.D.3d 1221, 131 N.Y.S.3d 219 (2d Dept. 2020)
18. People v. Platel, 187 A.D.3d 1216, 131 N.Y.S.3d 583 (2d Dept. 2020)
19. People v. Adyl K., 187 A.D.3d 1208, 131 N.Y.S.3d 642 (2d Dept. 2020)
20. People v. Harris, 187 A.D.3d 1207, 131 N.Y.S.3d 593 (2d Dept. 2020)
21. People v. Gudanowski, 187 A.D.3d 1205, 131 N.Y.S.3d 617 (2d Dept. 2020)
22. People v. Wallace, 187 A.D.3d 1071, 131 N.Y.S.3d 181 (2d Dept 2020)
23. People v. Thomas, 187 A.D.3d 1069, 131 N.Y.S.3d 167 (2d Dept. 2020)
24. People v. Sealey, 187 A.D.3d 1067, 131 N.Y.S.3d 179 (2d Dept. 2020)
25. People v. Pellew, 187 A.D.3d 1060, 131 N.Y.S.3d 266 (2d Dept. 2020)
26. People v. Long, 187 A.D.3d 1055, 131 N.Y.S.3d 267 (2d Dept. 2020)
27. People v. Joseph, 187 A.D.3d 1050, 131 N.Y.S.3d 267 (2d Dept. 2020)
28. People v. Gonzalez, 186 A.D.3d 1832, 129 N.Y.S.3d 357 (3d Dept. 2020)
29. People v. Reynolds, 186 A.D.3d 1535, 129 N.Y.S.3d 495 (2d Dept. 2020)
30. People v. Walder, 186 A.D.3d 1272, 127 N.Y.S.3d 894 (2d Dept. 2020) 31. People v. Eduardo S., 186 A.D.3d 1265, 129 N.Y.S.3d 483 (2d Dept. 2020)
32. People v. Cipolla, 186 A.D.3d 1136, 127 N.Y.S.3d 368 (4th Dept. 2020)
33. People v. Williams, 186 A.D.3d 1112, 127 N.Y.S.3d 366 (4th Dept. 2020)
34. People v. Somers, 186 A.D.3d 1111, 127 N.Y.S.3d 399 (4th Dept. 2020)
35. People v. Shantz, 186 A.D.3d 1076, 127 N.Y.S.3d 383 (4th Dept. 2020)
36. People v. Wasyl, 186 A.D.3d 1071, 127 N.Y.S.3d 357 (4th Dept. 2020)
37. People v. Jones, 186 A.D.3d 1069, 127 N.Y.S.3d 361 (4th Dept. 2020)
38. People v. Habersham, 186 A.D.3d 854, 127 N.Y.S.3d 775 (2d Dept. 2020), lv denied 35 N.Y.3d 1113, 133 N.Y.S.3d 520, 158 N.E.3d 541 (2020)
39. People v. Cobian, 186 A.D.3d 851, 127 N.Y.S.3d 329 (2d Dept. 2020)
40. People v. Jeremiah, 186 A.D.3d 740, 127 N.Y.S.3d 297 (2d Dept. 2020), lv denied 35 N.Y.3d 1113, 133 N.Y.S.3d 524, 158 N.E.3d 541 (2020)
41. People v. McMillian, 185 A.D.3d 1420, 127 N.Y.S.3d 669 (4th Dept. 2020), lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 306, 155 N.E.3d 799 (2020)
42. People v. Jeffords, 185 A.D.3d 1417, 128 N.Y.S.3d 112 (4th Dept. 2020), lv denied 35 N.Y.3d 1095, 131 N.Y.S.3d 303, 155 N.E.3d 796 (2020)
43. People v. Raghnal, 185 A.D.3d 1411, 127 N.Y.S.3d 665 (4th Dept. 2020), lv denied 35 N.Y.3d 1115, 133 N.Y.S.3d 511, 158 N.E.3d 528 (2020)
44. People v. Mitchell, 185 A.D.3d 1410, 128 N.Y.S.3d 110 (4th Dept. 2020)
45. People v. Tomko, 185 A.D.3d 1356, 128 N.Y.S.3d 98 (3d Dept. 2020), lv denied 35 N.Y.3d 1116, 133 N.Y.S.3d 521, 158 N.E.3d 538 (2020)
46. People v. Rodriguez, 185 A.D.3d 1296, 125 N.Y.S.3d 898 (3d Dept. 2020)
47. People v. Marcus, 184 A.D.3d 1143, 126 N.Y.S.3d 265 (4th Dept. 2020), lv denied 35 N.Y.3d 1068, 129 N.Y.S.3d 366, 152 N.E.3d 1168 (2020)
48. People v. Anderson, 184 A.D.3d 1020, 124 N.Y.S.3d 589 (3d Dept. 2020), lv denied 35 N.Y.3d 1064, 129 N.Y.S.3d 363, 152 N.E.3d 1165 (2020)
49. People v. Brito, 184 A.D.3d 900, 124 N.Y.S.3d 749 (3d Dept. 2020)
50. People v. Velez, 184 A.D.3d 880, 124 N.Y.S.3d 228 (2d Dept. 2020)
51. People v. Mungin, 184 A.D.3d 877, 124 N.Y.S.3d 250 (2d Dept. 2020)
52. People v. Morocho, 184 A.D.3d 876, 124 N.Y.S.3d 241 (2d Dept. 2020), lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 307, 155 N.E.3d 800 (2020)
53. People v. Dixon, 184 A.D.3d 854, 124 N.Y.S.3d 575 (2d Dept. 2020), lv. denied 35 N.Y.3d 1065, 129 N.Y.S.3d 405, 152 N.E.3d 1206 (2020)
54. People v. Leiva, 184 A.D.3d 731, 124 N.Y.S.3d 207 (2d Dept. 2020), lv denied 35 N.Y.3d 1067, 129 N.Y.S.3d 404, 152 N.E.3d 1205 (2020)
55. People v. Simpson, 184 A.D.3d 677, 123 N.Y.S.3d 846 (2d Dept. 2020), lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 372, 152 N.E.3d 1174 (2020)
56. People v. Chy, 184 A.D.3d 664, 125 N.Y.S.3d 130 (2d Dept. 2020)
57. People v. Christopher B., 184 A.D.3d 657, 125 N.Y.S.3d 149 (2d Dept. 2020), lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 364, 152 N.E.3d 1166 (2020) 58. People v. Aquino, 184 A.D.3d 656, 123 N.Y.S.3d 513 (2d Dept. 2020), lv denied 35 N.Y.3d 1042, 127 N.Y.S.3d 819, 151 N.E.3d 500 (2020)
59. People v. Dubose, 184 A.D.3d 584, 123 N.Y.S.3d 530 (2d Dept. 2020)
60. People v. Youngs, 183 A.D.3d 1228, 121 N.Y.S.3d 701 (4th Dept. 2020)
61. People v. Wilson, 183 A.D.3d 922, 122 N.Y.S.3d 545 (2d Dept. 2020), lv denied 35 N.Y.3d 1050, 127 N.Y.S.3d 825, 151 N.E.3d 506 (2020)
62. People v. Dixon, 183 A.D.3d 837, 122 N.Y.S.3d 560 (2d Dept. 2020), lv denied
35 N.Y.3d 1065, 129 N.Y.S.3d 389, 152 N.E.3d 1190 (2020)
63. People v. Suarez–Montoya, 183 A.D.3d 765, 121 N.Y.S.3d 914 (2d Dept. 2020)
64. People v. Contreras, 183 A.D.3d 759, 121 N.Y.S.3d 665 (2d Dept. 2020), lv denied 35 N.Y.3d 1026, 126 N.Y.S.3d 30, 149 N.E.3d 868 (2020)
65. People v. Howard, 183 A.D.3d 640, 121 N.Y.S.3d 622 (2d Dept. 2020), lv denied 35 N.Y.3d 1113, 133 N.Y.S.3d 523, 158 N.E.3d 540 (2020)
66. People v. Kang, 183 A.D.3d 640, 121 N.Y.S.3d 640 (2d Dept. 2020), lv denied 35 N.Y.3d 1067, 129 N.Y.S.3d 377, 152 N.E.3d 1179 (2020)
67. People v. Johnson, 182 A.D.3d 1036, 120 N.Y.S.3d 902 (4th Dept. 2020), lv denied 35 N.Y.3d 1046, 127 N.Y.S.3d 849, 151 N.E.3d 530 (2020)
68. People v. White, 182 A.D.3d 612, 120 N.Y.S.3d 798 (2d Dept. 2020), lv. denied 35 N.Y.3d 1116 (2020)
69. People v. Devallon, 182 A.D.3d 608 (2d Dept 2020), lv denied 35 N.Y.3d 1026, 126 N.Y.S.3d 33, 149 N.E.3d 871 (2020)
70. People v. Weeks, 182 A.D.3d 539, 122 N.Y.S.3d 347 (2d Dept. 2020)
71. People v. Cole, 181 A.D.3d 1329, 121 N.Y.S.3d 766 (4th Dept. 2020)
72. People v. Crogan, 181 A.D.3d 1212, 118 N.Y.S.3d 484 (4th Dept. 2020), lv denied 35 N.Y.3d 1026, 126 N.Y.S.3d 31, 149 N.E.3d 869 (2020)
73. People v. Byrd, 181 A.D.3d 1183, 118 N.Y.S.3d 466 (4th Dept. 2020), lv denied 35 N.Y.3d 1025, 126 N.Y.S.3d 27, 149 N.E.3d 865 (2020)
74. People v. Martz, 181 A.D.3d 979, 119 N.Y.S.3d 310 (3d Dept. 2020), lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 819, 151 N.E.3d 500 (2020)
75. People v. Tellado, 181 A.D.3d 830, 118 N.Y.S.3d 417 (2d Dept. 2020)
76. People v. Rivera, 181 A.D.3d 825, 118 N.Y.S.3d 419 (2d Dept. 2020)
77. People v. Paulin, 181 A.D.3d 824, 118 N.Y.S.3d 415 (2d Dept. 2020), lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 829, 151 N.E.3d 510 (2020)
78. People v. Brown, 181 A.D.3d 819, 118 N.Y.S.3d 424 (2d Dept. 2020)
79. People v. Tayeh, 181 A.D.3d 726, 117 N.Y.S.3d 606 (2d Dept. 2020), lv denied 35 N.Y.3d 1029, 126 N.Y.S.3d 24, 149 N.E.3d 862 (2020)
80. People v. McDowell, 181 A.D.3d 716, 117 N.Y.S.3d 854 (2d Dept. 2020), lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 306, 155 N.E.3d 799 (2020)
81. People v. Baptiste, 181 A.D.3d 696, 117 N.Y.S.3d 882 (2d Dept. 2020), lv denied 35 N.Y.3d 1092, 131 N.Y.S.3d 285, 155 N.E.3d 778 (2020) 82. People v. Brown, 180 A.D.3d 1341, 115 N.Y.S.3d 734 (4th Dept. 2020), lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 19, 148 N.E.3d 483 (2020)
83. People v. Kyra J., 180 A.D.3d 929, 115 N.Y.S.3d 905 (2d Dept. 2020), lv denied 35 N.Y.3d 971, 125 N.Y.S.3d 28, 148 N.E.3d 492 (2020)
84. People v. Christie, 180 A.D.3d 802, 115 N.Y.S.3d 918 (2d Dept. 2020), lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 41, 148 N.E.3d 505 (2020)
85. People v. Berry, 180 A.D.3d 801, 115 N.Y.S.3d 898 (2d Dept. 2020)
86. People v. Frias, 180 A.D.3d 704, 115 N.Y.S.3d 679 (2d Dept. 2020), lv denied 35 N.Y.3d 970, 125 N.Y.S.3d 43, 148 N.E.3d 507 (2020)
87. People v. Stenson, 179 A.D.3d 1449, 114 N.Y.S.3d 926 (4th Dept. 2020), lv denied
35 N.Y.3d 974, 125 N.Y.S.3d 39, 148 N.E.3d 503 (2020)
88. People v. Dozier, 179 A.D.3d 1447, 119 N.Y.S.3d 318 (4th Dept. 2020), lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 (2020)
89. People v. Barrales, 179 A.D.3d 1313, 118 N.Y.S.3d 263 (3d Dept 2020)
90. People v. Ortega–Flores, 70 Misc.3d 60, 125 N.Y.S.3d 219 (App. Term, 2d Dept., 9th & 10th Jud. Dists. 2020), lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 308, 155 N.E.3d 801 (2020)
STEIN, J. (dissenting in People v. Daniels and otherwise concurring).
I join the majority's memorandum decision reversing in the nine appeals before us other than People v. Daniels . However, in Daniels, I am in agreement with Judge Garcia that the majority goes beyond what is required by People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] and effectively overrules our decision in People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006]. Therefore, I join Part IV of Judge Garcia's dissent.
In People v Bisono :: On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals, order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Wilson and Feinman concur. Judge Garcia concurs in result in an opinion.
In People v Baker : On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals, order reversed and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein.
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Wilson and Feinman concur. Judge Garcia concurs in result in an opinion.
In People v Magee : On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals, order reversed and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein.
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Wilson and Feinman concur. Judge Garcia concurs in result in an opinion.
In People v Miller : On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals, order reversed and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein.
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Wilson and Feinman concur. Judge Garcia concurs in result in an opinion.
In People v Daniels : On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals, order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Wilson and Feinman concur. Judge Garcia concurs in result in an opinion.
In People v Hardin : On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals, order reversed
and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Wilson and Feinman concur. Judge Garcia concurs in result in an opinion.
In People v Ogando : On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals, order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Wilson and Feinman concur. Judge Garcia concurs in result in an opinion.
In People v Biaselli : On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals, order reversed and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein. Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Wilson and Feinman concur. Judge Garcia concurs in result in an opinion.
In People v Torres : On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals, order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Wilson and Feinman concur. Judge Garcia concurs in result in an opinion.
In People v Rodriguez : On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals, order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Wilson and Feinman concur. Judge Garcia concurs in result in an opinion.
* As of December 9, 2020.