Putting Our Experience and Reputation to Work For You

Putting Our Experience and Reputation to Work For You

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Does an Appeal Waiver Preclude a Defendant from Appealing?


The People can and often require a defendant to waive the right to appeal in connection with a plea bargain. The waiver, however, is not absolute. The defendant can still file a notice of appeal to challenge certain issues.

One such issue that survives the waiver concerns the validity or voluntariness of the plea. Notwithstanding the waiver, for example, the defendant’s guilty plea will be vacated where the record evidences coercion during the proceedings, including hostility and bias toward the defendant.

To the extent that it renders the plea as involuntary, a defendant can also still raise the issue of counsel’s ineffectiveness. Unless counsel’s poor performance is evidenced by the record, however, the appropriate vehicle for review of this claim may be a motion pursuant to CPL 440.10.

The appellate courts also do not permit unauthorized or illegal sentences, even when the defendant consents to it. Counsel should therefore review Article 70 of the Penal Law to determine the propriety of the sentence imposed.

Similarly, a defendant can also still challenge any jurisdictional defects with the accusatory instrument, such as where the indictment fails to charge the defendant with the commission of a particular crime. This could occur, for example, where a conspiracy charge fails to allege a specific overt act. In contrast, technical defects, such as a mistake regarding date, time or place, do not survive a waiver.

In addition, a sentencing court may impose a longer sentence or additional conditions beyond those that were initially agreed upon by the defendant in entering the guilty plea. Before the sentencing court may impose an enhanced sentence, however, the defendant must be afforded the opportunity to withdraw the plea. Appellate courts will not hesitate to rectify this type of error, regardless of any appeal waiver.

As there are several additional issues that can survive a waiver, counsel must research each issue separately to determine whether a specific issue survives. Counsel should also be familiar with preservation rules and take any actions necessary to preserve a defendant’s right to raise a survivable issue, such as filing an appropriate motion to vacate the judgment or withdraw the plea.