Justice Rolando Acosta, Photo: Rick Kopstein

In light of the recent debate about the efficacy of appeal waivers in the context of plea negotiations, I take the opportunity to address how the Appellate Division, First Department handles appeals, where the defendant purportedly waived his or her right to appeal as part of a guilty plea and argues only that the sentence is excessive.  Although appeal waivers have been upheld since 1989 (People v Seaberg, 74 NY2d 1 [1989]), recent comments by practitioners regarding the fairness and enforceability of these waivers has brought the issue to the fore (see, e.g., David Loftis, Appeal Waivers Are Not Truly Voluntary, NY Law Journal, Nov. 15, 2018, citing Prof. Nancy Gertner, Having the Right to Appeal is an Issue of Fairness, New York Times, February 4, 2016); Larry Cunningham, In Defense of Appeal Waivers, NY Law Journal, Nov. 26, 2018.  The Second Department’s recent decision in People v Anardo Batista (___AD3d ___, 2018 NY Slip Op 07445 [2d Dept 2018])—where it specifically addressed, among other things, the appellate delay created by trial courts’ “perfunctory appeal waiver colloqu[ies]” (id. at p. 8)—has also raised the question of what appellate courts should do when faced with a deluge of waiver cases.

The First Department has had a different experience with this issue.  Indeed, even though we take the appeal waiver issue seriously, we have streamlined our approach and do not experience the delays that our colleagues in the Second Department deal with

The right to appeal may be waived as a condition of a plea bargain (People v Seaberg, 74 NY2d 1, 5 [1989]) “so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (People v Lopez, 6 NY3d 248, 256 [2006]).  The Court of Appeals has made clear that eliciting a valid and enforceable appeal waiver need not be a particularly onerous exercise (see, e.g., People v Lopez, 6 NY3d 248, 256–57 [2015]; People v Sanders, 25 NY3d 337, 341–42 [2015]; People v Bryant, 28 NY3d 1094, 1095–96 [2016]).

In our experience, excessive-sentence cases consume very little of our precious time, even though we have decided hundreds of such cases in the past five years.  Indeed, in the great majority of excessive-sentence-only appeals, this Court determines that the sentence was not excessive, without reaching the validity of any appeal waiver.  Our standard affirmance in this type of case expressly states that we reached the merits of the excessiveness claim, and does not even mention whether there was an appeal waiver.  In a few of these cases, the panel hearing the appeal chooses to issue a decision pointing out that an appeal waiver was defective, but still finding that the sentence was not excessive (see, e.g., People v Oquendo, 105 AD3d 447 [1st Dept 2013], lv denied 21 NY3d 1007 [2013]).  However, more commonly, the panel chooses not to determine whether an appeal waiver prevents it from exercising a discretionary sentence-reduction power that it declines to exercise in any event.  When the panel does find the sentence excessive, and the People are asserting that there was an enforceable waiver, it then becomes necessary to address the waiver’s validity.

But, when that is not the case, and to the extent that deciding “whether a particular sentence is excessive [can be] less time-intensive” than determining the validity of an appeal waiver (see Batista, 2018 NY Slip Op 07445, p. 13 [Scheinkman, P.J., concurring]), it only makes sense to adjudicate the appeal more efficiently by resolving the former issue instead of the latter.  Appellate courts, as well as trial judges, of course, take this approach all of the time to expedite the resolution of cases (see, e.g., People v Chapman, 101 AD3d 406, 406—407 [1st Dept 2012] [declining to decide whether the introduction of Molineux evidence was proper, since the admission of the evidence was unquestionably harmless]).

Because of this method, this Court has issued only a small number of decisions finding the appeal waiver invalid.  In our experience to focus on an appeal waiver when the sentence is not excessive is like allowing the home baseball team to bat in the bottom of the ninth inning when the home team is already ahead; they have already won, so what’s the point?

There is, arguably, another benefit to this less-is-more approach.  When the Court declines to reduce a sentence in the interest of justice but has nevertheless gone out of its way to observe that an appellate waiver was invalid, the People are not aggrieved by the Court’s ruling and no further appellate review can be sought.  What this means, for the trial judge whose appeal waiver allocution has been criticized, is that the Appellate Division has the final say on the matter.  And in this regard, it seems only fair to acknowledge that the Appellate Division has appeared, at least in certain cases, to have taken a much stricter approach than the Court of Appeals to evaluating appeal waivers (see, e.g., Bryant, 28 NY3d at 1096 [reversing this Court’s determination that an appeal waiver was invalid]), even though that Court “[has] never abandoned [its] oft-stated instruction that a trial court need not engage in any particular litany when apprising a defendant pleading guilty of the individual rights abandoned” (Sanders, 25 NY3d at 341 [internal quotation marks omitted]).  This is especially so given the Court of Appeals’ decision in People v Nicholson (decided with Lopez), where the Court upheld a waiver allocution that consisted of a single question posed to the defendant by the trial court (6 NY3d at 254), and Sanders, where the colloquy was nearly as brief.

Moreover, in my view, resolving excessive-sentence appeals in this manner does not deprive the People, in any significant respect, of the benefits that inure from negotiating dispositions that include appeal waivers.  Yes, the People must file an appellate brief, which will typically argue both that the waiver should be enforced and that the sentence should not be reduced in any event.  And that expenditure of resources is, to be sure, something that appeal waivers are designed to eliminate.  But excessive-sentence briefs are not particularly labor intensive. And, as explained, if the Court is contemplating reducing a bargained-for sentence, it will then carefully review the waiver to determine whether it is enforceable.  If it is, the sentence cannot be reduced, the negotiated sentence will stand, and the People’s plea bargain will remain intact.  Thus, under either approach, the People are able to receive the ultimate benefit of their bargain—an affirmance, which is all the People really seek.

Presiding Justice Scheinkman, in his concurring opinion in Batista, suggested that if the People were to argue, in connection with an excessive-sentence appeal, that invalidation of the waiver should result not in appellate review of the underlying sentence claim, but vacatur of the plea, defendants might think twice about filing excessive-sentence briefs.  The People could make this argument, according to Justice Scheinkman, because when a waiver is held to be invalid, they have been deprived of a significant part of the consideration given by the defendant in exchange for a favorable plea and sentence and, therefore, the plea bargain should be undone (see Batista, 2018 NY Slip Op 07445, pp.12–13 [Scheinkman, P.J., concurring]).  But, presumably, the People would be reluctant to pursue this approach, because, if they prevailed, they would have to resurrect a case that they thought was finished (perhaps several years earlier) when the plea was taken.  Thus, they are likely content to have an invalid plea waiver result in the review of an excessive-sentence claim on the merits, rather than dissolution of the plea bargain.

In any event, this Court has already found unenforceable a provision in an appeal waiver that sought to treat the filing of a notice of appeal as a motion to vacate the conviction and sentence and thus restore the case to its pre-plea status (People v Santiago, 119 AD3d 484, 485-486 [1st Dept 2014] [“This clause is unenforceable because there is no statutory authority to vacate a judgment under these circumstances . . . . Further, this language discourages defendants from filing notices of appeal even when they have claims that cannot be waived, such as one concerning the lawfulness of the waiver or the plea agreement itself”] [citations omitted] lv denied 24 NY3d 964 [2014]).

In closing, I share the frustration of my esteemed colleagues in the Second Department regarding the unnecessary work expended on criminal cases that the trial court and the parties sought to finally resolve below.  I share our experience, however, in the interest of collegiality among departments of the Appellate Division, while acknowledging that each Department has its unique set of internal constraints.

Rolando Acosta is the presiding justice of the Appellate Division, First Department.