Changing the Playing Field for Appeal Waivers

Posted by Editorial Team

October 20, 2020

By Susan Ministero, Chief Attorney of Appeals and Post-Conviction Unit

The Court of Appeals issued a decision in November of last year that has had significant impact on appellate courts’ determinations regarding the validity of appeal waivers throughout the state. In People v Thomas, three appellants contested the validity of their appeal waivers. Appellant Victor Thomas contended that language in the written waiver, indicating that no notice of appeal could be filed, rendered the entire appeal waiver null and void. Although the Court agreed that the “no-notice-of-appeal” language was incorrect, it held that the Thomas’s waiver of appeal was knowing and voluntary under the totality of circumstances, including the clarifying language in the written waiver and the court’s oral colloquy.

Attorneys from the Legal Aid Bureau of Buffalo, Inc.’s Appeals and Post-Conviction Unit, James Specyal and Susan Ministero, represented Nicole Green and Storm Lang, the other two appellants. The Court agreed with appellate counsel that, based on the records in those cases, it was impossible to tell whether appellants’ waivers of appeal were knowingly and voluntarily entered. “The trial court’s mischaracterization of appellate rights waived as not only encompassing an absolute bar to the taking of a direct appeal and the loss of attendant rights to counsel and poor person relief, but also post[-]conviction relief separate from the direct appeal, is even more serious than the conflated language in [People v] Billingslea” (People v Thomas, 34 NY3d 545, 565 [2019]). Ms. Green’s and Mr. Lang’s cases were remitted to the Appellate Division, Fourth Department for a determination of the issues raised that were not previously addressed.

The Court’s decision in People v Thomas has had a ripple effect on appellate courts across the state which are invalidating appeal waivers more frequently. Barbara Davies and Alan Williams, attorneys in The Appeals and Post-Conviction Unit, were recently successful in their efforts contesting the appeal waivers of their clients in People v Johnson, 182 AD3d 1036 (4th Dept 2020) and People v Dozier, 179 AD3d 1447 (4th Dept 2020). The Unit also has four matters currently pending before the state’s highest Court involving appeal waivers. The matters were submitted to the Court by Allyson Kehl-Wierzbowski, James Specyal and Kaixi Xu.

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