New York Appellate Lawyer

48 Wall Street, 5th Floor, New York, NY 10005

Federal Criminal Appeals Throughout The United States and
New York State Criminal Appeals.

Located at 48 Wall Street, 5th Floor, New York, NY! 1-800-APPEALS (277-3257)

Waiver Of The Right To Appeal


People v. Bradshaw 2011 NY Slip Op 08963

Decided New York Court of Appeals December 13, 2011

See also Right to Appeal, Even When Defendant Has Been Deported

Issue: Whether the defendant made a knowing, intelligent and voluntary waiver of the right to an appeal.

Holding: waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily”. We hold that the record fails to establish that defendant validly waived his right to appeal.

 Facts: Kings County grand jury indicted defendant for rape in the first degree.  Supreme Court arraigned defendant on the charges and ordered that he submit to an examination pursuant to article 730 of the Criminal Procedure Law to determine whether he was an “incapacitated person.”

Both a psychiatrist and a psychologist separately evaluated defendant in early August 2004 and they each concluded that defendant was unfit to proceed with his case.

 Supreme Court signed an order, on motion of defense counsel, adjudicating defendant an incapacitated person and committing him to the custody of the Commissioner of Mental Health.  defendant was diagnosed with “Adjustment Disorder with Anxiety and depressed mood.” he received extensive treatment, which included medication, individual sessions with his psychiatrists and group therapy. In a report dated March 3, 2005, defendant’s psychiatrists determined that he was now competent to return to court, finding improvement in defendant’s cognitive function.

Defendant’s ability to proceed with his case, however, proved short-lived.  defendant submitted to a second article 730 examination and was again found unfit to proceed. defendant’s treating psychiatrists at Mid-Hudson found him fit to proceed within a month of Supreme Court’s commitment order, defendant’s case did not move forward in a customary fashion.

Defendant finally returned to court in April 2006.  Supreme Court ordered a third article 730 examination of defendant on May 30, 2006.

Legal Analysis: 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];  An appellate waiver meets this standard when a defendant has “a full appreciation of the consequences” of such waiver.  To that end, a defendant must comprehend that an appeal waiver “is separate and distinct from those rights automatically forfeited upon a plea of guilty”

It is the trial court’s responsibility, “in the first instance,” to determine “whether a particular appellate waiver satisfies these requirements”  After all, the trial court “is in the best position to assess all of the relevant factors” (id.) “surrounding the waiver, including the nature and terms of the agreement and the age, experience and background of the accused”.

Though 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, 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” [a valid appeal waiver “cannot be inferred from a silent record”]).

Although the record before us here is not as bleak as the record in DeSimone, we likewise conclude it does not sufficiently demonstrate that defendant validly waived his right to appeal because the trial court failed to ensure that defendant grasped the minimal information pertaining to the appeal waiver it provided during the plea colloquy.

Following Supreme Court’s description of the appeal waiver, it questioned whether defendant comprehended the court’s remarks. Defendant answered by simply asking about the mandatory fees associated with his guilty plea. At this juncture, or at least prior to the completion of the plea proceeding, Supreme Court should have assured itself that defendant adequately understood the right that he was foregoing.

The absence of this inquiry is particularly troubling given defendant’s background and history of mental illness.  These circumstances, combined with the knowledge that defendant was a first time felony offender who had been ordered to submit to article 730 examinations in two other counties, should have alerted the trial court not only to give defendant a thorough explanation of the appeal waiver but also to make sure that defendant fully grasped the nature of this fundamental right that he was foregoing

Here, by contrast, defendant never orally confirmed that he grasped the concept of the appeal waiver and the nature of the right he was foregoing. Notwithstanding the written appeal waiver form, it cannot be said that defendant knowingly, intelligently and voluntarily waived his right to appeal

 We advance no new rule today. Rather, we are simply applying our sound decisions — as we must — in SeabergCallahanDeSimoneLopez and Ramos to the particular circumstances of this case. And this precedent makes clear that “to facilitate appellate review,” it is the trial court’s obligation “to ensure” that a defendant’s understanding of the appeal waiver is “made apparent on the face of the record”