The People &c.,
The People &c.,
The People &c.,
2006 NY Int. 17
Can a criminal defendant who has validly waived the
right to appeal nonetheless ask the Appellate Division to
exercise its interest-of-justice jurisdiction to reduce a
sentence? We answer that question in the negative, though in so
doing we underscore the critical nature of a court's colloquy
People v Lopez
Following arrest and indictment for possession and sale of a controlled substance in or near school grounds, defendant Lopez pleaded guilty to a reduced charge. In exchange for this plea, the court promised to impose a sentence of imprisonment of 2-1/2 to 5 years. At the time of the plea, defendant waived his right to appeal on the record, both verbally and in writing. Despite this waiver, on January 14, 2004, defendant, acting pro se, filed a timely notice of appeal, noting only that he would appeal the conviction and/or sentence. After appointment by the Appellate Division, appellate counsel argued that the court should reduce defendant's sentence in the interest of justice despite his waiver of the right to appeal.
The Appellate Division affirmed with respect to
defendant's sentence, holding that [d]efendant's valid waiver of
his right to appeal encompassed his excessive sentence claim and
thus forecloses interest of justice review. In any event, were
we to find that defendant did not validly waive his right to
appeal, we would perceive no basis for reducing the sentence (16
AD3d 258, 258 [1st Dept 2005] [internal citation omitted]). On
defendant's appeal of the excessive sentence issue, we now affirm
the Appellate Division's conclusion.
Defendant Billingslea, after suffering a psychotic episode, repeatedly stabbed both her best friend and her seven- year-old daughter, killing the child. Indicted for three counts of murder in the second degree and one count of attempted murder in the second degree -- along with lesser crimes -- defendant pleaded guilty to manslaughter in the first degree in satisfaction of all charges and was sentenced to the agreed-upon prison term of 15 years.
During the plea allocution, the court asked defendant a series of questions concerning facts surrounding the homicide and whether she understood that by pleading guilty she was giving up the rights attendant to a criminal trial. After defendant responded yes, the court then said to her, And last, if you went to trial and were convicted, you would have what is known as the right of appeal. That means that a group of judges would review everything done in this case to make sure your rights have been protected, but when you plead guilty you waive your right of appeal. Defendant again replied yes when asked if she understood.
After defendant filed an appeal requesting a reduction
of her sentence in the interest of justice, the Appellate
Division affirmed her conviction and sentence stating, The
record demonstrates that the defendant knowingly, intelligently,
and voluntarily waived her right to appeal, which included any
challenge to her sentence, which was imposed pursuant to a
People v Nicholson
Defendant Nicholson was charged with attempted murder in the second degree as well as five related charges arising out of a 1999 knife fight with a rival gang member. In exchange for a promised prison sentence of eight years, defendant pleaded guilty. As part of his plea colloquy, and following an explanation of the trial rights forfeited by virtue of a guilty plea, the court said to defendant, You also understand you're giving up your right to appeal, that is, to take to a higher court than this one any of the legal issues connected with this case? You understand that? Defendant answered yes. One month later, prior to sentencing, the court reiterated, [d]efendant is waiving his right to appeal in this matter. Defendant raised no objection to that statement. Both the court and the court clerk noted in the record that defendant waived his right to appeal. Like defendant Billingslea, Nicholson did not execute a written appeal waiver.
On his appeal to the Appellate Division, defendant
argued that the appeal waiver, as explained to him, was invalid
and that, even if the waiver was valid, the Appellate Division
maintained its interest-of-justice authority to review what he
A defendant's valid waiver of the right to appeal includes waiver of the right to invoke the Appellate Division's interest-of-justice jurisdiction to reduce the sentence.
In People v Seaberg (, 74 NY2d 1, 10 ) this Court
recognized the enforceability of guilty pleas conditioned on a
defendant's waiver of the right to appeal. While certain claims
remain outside the ambit of a valid appeal waiver -- for example,
legality of a sentence ( see People v Callahan, , 80 NY2d 273, 280
), challenge to a defendant's competency ( see Seaberg, 74
NY2d at 9) and a constitutional speedy trial claim ( see id.; see
also People v Campbell, , 97 NY2d 532, 535 ) -- generally, an
appeal waiver will encompass any issue that does not involve a
right of constitutional dimension going to the very heart of the
By waiving the right to appeal in connection with a negotiated plea and sentence, a defendant agrees to end the proceedings entirely at the time of sentencing and to accept as reasonable the sentence imposed. While the Appellate Division may be divested of its unique interest-of-justice jurisdiction only by constitutional amendment ( see People v Pollenz, , 67 NY2d 264, 267-268 ), a defendant is free to relinquish the right to invoke that authority and indeed does so by validly waiving the right to appeal.
A defendant may not subsequently eviscerate that bargain by asking an appellate court to reduce the sentence in the interest of justice -- realistically an issue that as a practical matter is brought to an appellate court's attention only when raised by defendants. The important goals of fairness and finality in criminal matters are accomplished only insofar as the parties are confident that the 'carefully orchestrated bargain' of an agreed-upon sentence will not be disturbed as a discretionary matter ( Seaberg, 74 NY2d at 10 [citing People v Prescott, , 66 NY2d 216, 220 ).
We therefore conclude that when a defendant enters into
a guilty plea that includes a valid waiver of the right to
Because only a few reviewable issues survive a valid appeal waiver, it is all the more important for trial courts to ensure that defendants understand what they are surrendering when they waive the right to appeal. Giving up the right to appeal is not a perfunctory step.
A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily ( see People v Calvi, , 89 NY2d 868, 871 ). And though a trial court need not engage in any particular litany when apprising a defendant pleading guilty of the individual rights abandoned, it must make certain that a defendant's understanding of the terms and conditions of a plea agreement is evident on the face of the record ( People v Callahan, 80 NY2d at 280).
When a trial court characterizes an appeal as one of
the many rights automatically extinguished upon entry of a guilty
plea, a reviewing court cannot be certain that the defendant
comprehended the nature of the waiver of appellate rights. The
record must establish that the defendant understood that the
right to appeal is separate and distinct from those rights
Forfeiture of certain claims occurs by operation of law as a consequence of a guilty plea, with respect to issues that do not survive the plea. Waiver, on the other hand, occurs when a defendant intentionally and voluntarily relinquishes or abandons a known right that would otherwise survive a guilty plea ( People v Hansen, 95 NY2d at 230 n 1). When a trial court inaccurately employs the language of forfeiture in a situation of waiver, it has mischaracterized the nature of the right a defendant was being asked to cede.
In People v Billingslea we conclude that the record does not demonstrate that defendant understood she was relinquishing a known right and that her waiver was thus invalid. During the colloquy, the trial court explained to defendant that when you plead guilty you waive your right to appeal. This misleading statement, when accompanied by nothing other than defendant's one-word response to the question whether she understood the conditions of her plea, is not sufficient to guarantee that defendant understood the valued right she was relinquishing. Because her appeal waiver was invalid, defendant is thus entitled to review of whether her sentence was excessive.
In People v Nicholson, on the other hand, the trial
court engaged in a fuller colloquy, describing the nature of the
Accordingly, the orders in People v Lopez and People v Nicholson should be affirmed, and the order in People v Billingslea should be reversed and the case remitted to the Appellate Division for consideration of the excessive sentencing issue.
People v Lopez - No. 23 People v Billingslea - No. 24 People v Nicholson - No. 25 G.B. SMITH, J. (concurring in result):
I concur in the Court's conclusion that the orders in
People v Lopez and People v Nicholson should be affirmed, and
that the order in People v Billingslea should be reversed and the
case remitted so that the Appellate Division can hear defendant
Billingslea's excessive sentence claim. I write separately
because I disagree with the Court's holding that when a defendant
enters into a negotiated guilty plea that includes, as a
condition to the plea, a valid waiver of defendant's right to
appeal, "that waiver includes any challenge to the severity of
the sentence" (Court op at 6) and thereby prevents a defendant
from asking the Appellate Division to exercise its interest-of-
justice jurisdiction to review and reduce a legal, but unduly
harsh or severe sentence.
The Court's holding does not
In the cases at bar, each defendant entered a guilty
plea. As part of their respective guilty pleas, defendants Lopez
and Nicholson validly waived the right to appeal, i.e., the
waiver of the right was made knowingly, intelligently and
voluntarily. In the case of defendant Billingslea, however, the
plea-taking court mistakenly ruled that the waiver of the right
to appeal was automatic when it stated that "when you plead
This Court now rules that a criminal defendant who has validly waived the right to appeal cannot ask the Appellate Division to exercise its interest-of-justice jurisdiction to reduce a sentence. Applying this rule to People v Lopez and People v Nicholson, the Court affirmed the judgments and sentences imposed against defendants Lopez and Nicholson. However, because defendant Billingslea did not validly waive the right to appeal, the above-stated rule is inapplicable to People v Billingslea and the Court reverses the Appellate Division and remits the case for consideration of the excessive sentence issue.
Under article VI, §§ 1 and 2 of the New York State
Constitution of 1894, the Appellate Division of the Supreme Court
Applicable to criminal appeals only, the Appellate
Division's interest-of-justice jurisdiction to reduce a sentence
which it finds unduly harsh, severe or excessive has long been
recognized in this State ( see People v Thompson, , 60 NY2d 513, 520
). This sentence-review/reduction jurisdiction "was
originally exercised as an inherent power" ( Thompson, 60 NY2d at
520, citing People v Miles, 173 AD 179, 183-185 [3rd Dep't
1916]). The Miles court said that: (1) Supreme Court's power to
hand down sentences was inherently subject to Appellate Division
Article VI, § 4(k) of the New York State Constitution provides as follows:
 In other words, article VI, § 4(k) granted the Appellate
"The appellate divisions of the supreme court shall have all the jurisdiction possessed by them on the effective date of this article and such additional jurisdiction as may be prescribed by law, provided, however, that the right to appeal to the appellate divisions from a judgment or order which does not finally determine an action or special proceeding may be limited or conditioned by law."
The Court contends that "[a] defendant's valid waiver of the right to appeal includes waiver of the right to invoke the Appellate Division's interest-of-justice jurisdiction to reduce the sentence" (Court op at 5). This position, in effect, precludes the Appellate Division from exercising its interest of justice jurisdiction.
In People v Seaberg (, 74 NY2d 1, 5 ), this Court held that "the right to appeal may be waived as a condition of a sentence or plea bargain." In support of this holding, the Court stated:
"The right to appeal a validly imposed sentence does not  implicate society's interest in the integrity of criminal process, however, and to the extent that it does, that interest is protected by the procedural and substantive requirements imposed on the Trial Judge before the defendant may be sentenced (citations omitted).
Whatever benefits review may provide, they are not sufficiently compelling to warrant permitting a defendant to repudiate an agreement of an individualized sentence knowingly and voluntarily accepted.
[S]uch waivers do not interfere
with the interest of justice
jurisdiction of the Appellate
Division ( see People v Bourne, 139
AD2d 210, lv denied , 72 NY2d 955).
The analogy is to People v Pollenz
( id. at 10).
"[T]he public interest concerns underlying plea bargains generally are served by enforcing waivers of the right to appeal. Indeed, such waivers advance that interest, for the State's legitimate interest in finality extends to the sentence itself and to holding defendants to bargains they have made. [Moreover], the negotiating process serves little purpose if the terms of 'a carefully orchestrated bargain' can subsequently be challenged (internal citation omitted). *** The validity of the waiver is supported by the interests supporting plea bargains generally. Accordingly, we find no public policy precluding defendants from waiving their rights to appeal as a condition of the plea and sentence bargains"
People v Seaberg, and the Court's opinion herein,
vigorously stress the importance of holding defendant to the plea
It must be noted that neither the need to hold a
defendant to a bargain nor the trial judge's role to ensure a
reasonable plea and sentence forecloses the exercise of the
Appellate Division's interest-of-justice jurisdiction to review
and reduce sentences.
Certainly, it is within the public's best interest to
hold parties to the promises they have made and to have courts
that fairly and expeditiously resolve criminal matters.
However, in the case at bar, the importance of holding a
defendant to a bargain, and all that flows from adherence to that
bargain, must be weighed against: (1) the Appellate Division's
long-standing and constitutionalized interest-of-justice power to
review and reduce sentences; and (2) the possibility that an
unduly harsh, severe or excessive sentence will be imposed
despite bargaining and the efforts of the trial or plea-taking
judge to ensure a reasonable plea and sentence. Put another way,
where a defendant enters a plea and sentence bargain that happens
to include an unjust (i.e., unduly harsh, severe or excessive)
sentence, the Appellate Division, through the exercise of its
unique interest-of-justice sentence review/reduction power,
should be able to rectify the problem and render a just result.
The fact of the matter is that New York State's laws are rooted
in justice and where justice is not done, despite the existing
The foregoing discussion regarding the Appellate
Division's power to review and reduce legal, but unduly harsh,
severe or excessive sentences in the interest of justice,
including the historical review of the power (i.e., this inherent
power was first codified in the old Code of Criminal Procedure
and then specifically provided for in the New York State
Constitution), makes clear that the Appellate Division may always
exercise this power regardless of whether a sentence is imposed
after the rendering of a jury verdict or after a plea and
sentence bargain, even one including a valid waiver of the right
to appeal. Accordingly, the rule that the Court should apply in
deciding these cases is as follows: where a defendant who enters
a plea and sentence bargain validly waives the right to appeal,
that defendant may invoke the Appellate Division's interest-of-
justice jurisdiction to review and reduce a legal, but unduly
harsh, severe or excessive sentence; however, the Appellate
Division may or may not, within its discretion, reach defendant's
1 We emphasize that only the right to appeal harsh or excessive sentence is at issue in these cases. There is, moreover, no question of plea withdrawal.
2 The only interest-of-justice power at issue here is the power of the Appellate Division to review and reduce a legal, but unduly harsh, severe or excessive sentence.
3 In 1925, article VI, § 2 was amended and the Appellate Division was vested with "such original or appellate jurisdiction as is now or may hereafter be prescribed by law" ( see also Pollenz, 67 NY2d at 268 ). Regarding the 1925 amendment to article VI, § 2, this Court stated that it: (1) was "influenced by a desire to preserve the jurisdiction of the Appellate Divisions as broadly as it was then constituted (9 New York Constitutional Convention of 1938, Problems relating to Judicial Administration and Organization, at 97 [Poletti ed])"; and (2) "was regarded as prohibiting the Legislature from reducing the jurisdiction of the Appellate Division in any way (1957 Report of Temporary Commission on the Courts, 1957 McKinney's Session Laws of NY, at 1576)" ( id.).
4 This constitutional provision "was intended to render inapplicable the general rule that the right to appellate review is purely statutory" ( Pollenz, 67 NY2d at 269).
5 The effective date of article VI, § 4(k) was September 1, 1962 ( see, NY Const, art VI, § 37). "On [September 1, 1962], the Appellate Division was obliged to entertain all appeals from final judgments in criminal cases, including those rendered upon guilty pleas imposing negotiated sentences (citations omitted)" Pollenz, 67 NY2d at 268).
6 Although the Code of Criminal Procedure was replaced when the Legislature adopted the current Criminal Procedure Law in 1971, the interest-of-justice power to review and reduce sentences codified in section 543 of the Code of Criminal Procedure was provided for, without substantive change, in the new CPL ( see CPL 470.15 [b]; 470.20 ; see also Thompson, 60 NY2d at 520).
Under CPL 470.15 (6)(b), the Appellate Division may reverse or
modify a sentence on appeal from a conviction where the court
concludes that the "sentence, though legal, was unduly harsh or
severe" (CPL 470.15 [b]). The Appellate Division may, in its
discretion and without deference to the sentencing court,
exercise this sentence-review power if the interest of justice
warrants ( id.; see People v Delgado, , 80 NY2d 780, 783 1992]).
"Upon modifying a judgment or reversing a sentence as a matter of
discretion in the interest of justice upon the ground that the
sentence is unduly harsh or severe, the court must itself impose
some legally authorized lesser sentence" (CPL 470.20 ).
8 Because this Appellate Division power derives from the State's Constitution and can only be limited by constitutional amendment ( see Pollenz, 67 NY2d at 268), the suggestion made in Seaberg that a defendant can foreclose (i.e., prevent) the Appellate Division from exercising this power is incorrect.
9 As noted in Seaberg,"the final and prompt conclusion of litigation is an important goal of public policy in criminal as well as civil litigation, provided always that the settlement is fair, free from oppressiveness, and sensitive to the interests of both the accused and the People" ( Seaberg, 74 NY2d at 8).