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In this Criminal action, defendant appeals from a judgment of the Supreme Court, Kings County, convicting him of rape in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of suppression of identification testimony.

A Queens County Rape lawyer said that on the day after the Supreme Court denied suppression of identification testimony, the defendant agreed to plead guilty to rape in the first degree in exchange for a promised determinate sentence of nine years of imprisonment. During the course of the ensuing plea allocution, the Supreme Court advised the defendant of the terms of its sentencing commitment, and briefly explained that he would be waiving his right to appeal.

Although the defendant was asked directly by the Supreme Court whether he understood the nature of the waiver of the right to appeal, the defendant instead responded by asking the Supreme Court a question about the mandatory fees that would be imposed upon him as a result of his conviction. The defendant did not acknowledge in any manner that he understood the nature of the waiver. After both the Supreme Court and defense counsel attempted to clarify the fee issue, the Supreme Court asked the defendant whether he understood the explanation, and he replied “yes.”

The defendant further stated, in response to the Supreme Court’s inquiry, that although he had previously been confined to a hospital for mental illness, he now felt well psychologically. At the conclusion of the plea allocution, the Supreme Court asked whether a written waiver of the right to appeal had been signed, and defense counsel handed the Supreme Court a waiver form, stating that the defendant had executed the waiver form, and that counsel had witnessed it.

Nowhere in this record is there any indication that, prior to signing the waiver, the defendant had been advised of his right to take an appeal, that the defendant understood the nature of the waiver, or that the defendant’s waiver was executed voluntarily and knowingly. To the contrary, the defendant claimed, at sentencing, that his attorney had coerced him into pleading guilty and had misinformed him of the consequences of doing so, and claimed that his attorney had not provided him “with the proper paperwork,” but instead led him to believe that he would “receive a MICA [Mental Illness and Controlled-Substance Abuse] therapeutic program.”

Additionally, the Supreme Court did not question the defendant about the written waiver, and did not ascertain on the record that he understood its contents.

On appeal, the defendant contends that his waiver of the right to appeal is not enforceable because the Supreme Court provided virtually no explanation regarding the waiver and took no measures to ensure that he, a first felony offender with a history of mental illness, understood it and was validly waiving his right to appeal. The Court agreed.

In a case, the Court of Appeals first recognized that “the public interest concerns underlying plea bargains generally are served by enforcing waivers of the right to appeal,” observing that “the negotiating process serves little purpose if the terms of a carefully orchestrated bargain can subsequently be challenged”. However, “the opinion makes clear that a waiver of the right to appeal will not be enforced unless it was knowingly, intelligently and voluntarily made”. This determination must be made in the first instance by the trial court, which is in the best position to assess all of the relevant factors, including the reasonableness of the bargain, and the age and experience of the accused. Appellate courts are also entrusted with the responsibility to oversee the plea bargaining process, and must examine the record to ensure that the defendant’s waiver of the right to appeal reflects a knowing and voluntary choice. “While there is no requirement that the trial court engage in any particular litany in order to satisfy itself that these standards have been met, a knowing and voluntary waiver cannot be inferred from a silent record”.

To Be Cont…

Criminal cases like rape should be entrusted to diligent and responsible lawyers like our lawyers here in Stephen Bilkis and Associates. We have our Queens County Rape lawyers who will protect the victim from the commencement of the case filed against the assailant until the promulgation of judgment. For other concerns, we have our Queens County Criminal attorneys who will give you an advice as regards criminal matters. Contact us now, we will be glad to help you.

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