People v. Bisono, No. 97 SSM 14

CourtNew York Court of Appeals
Citation140 N.Y.S.3d 433,36 N.Y.3d 1013,164 N.E.3d 239
Docket NumberNo. 100 SSM 17,No. 103 SSM 21,No. 102 SSM 20,No. 105 SSM 28,No. 101 SSM 19,No. 98 SSM 15,No. 106 SSM 18,No. 99 SSM 16,No. 104 SSM 22,No. 97 SSM 14
Parties The PEOPLE of the State of New York, Respondent, v. Jose L. BISONO, Appellant. The People of the State of New York, Respondent, v. Trevis D. Baker, Appellant. The People of the State of New York, Respondent, v. Jeffrey R. Magee, Appellant. The People of the State of New York, Respondent, v. Joshua L. Miller, Appellant. The People of the State of New York, Respondent, v. Todd Daniels, Appellant. The People of the State of New York, Respondent, v. Zestra Hardin, Appellant. The People of the State of New York, Respondent, v. Nolis Ogando, Appellant. The People of the State of New York, Respondent, v. Joshua D. Biaselli, Appellant. The People of the State of New York, Respondent, v. Isaias Torres, Appellant. The People of the State of New York, Respondent, v. Lance Rodriguez, Appellant.
Decision Date15 December 2020

36 N.Y.3d 1013
164 N.E.3d 239
140 N.Y.S.3d 433

The PEOPLE of the State of New York, Respondent,
v.
Jose L. BISONO, Appellant.


The People of the State of New York, Respondent,
v.
Trevis D. Baker, Appellant.


The People of the State of New York, Respondent,
v.
Jeffrey R. Magee, Appellant.


The People of the State of New York, Respondent,
v.
Joshua L. Miller, Appellant.


The People of the State of New York, Respondent,
v.
Todd Daniels, Appellant.


The People of the State of New York, Respondent,
v.
Zestra Hardin, Appellant.


The People of the State of New York, Respondent,
v.
Nolis Ogando, Appellant.


The People of the State of New York, Respondent,
v.
Joshua D. Biaselli, Appellant.


The People of the State of New York, Respondent,
v.
Isaias Torres, Appellant.


The People of the State of New York, Respondent,
v.
Lance Rodriguez, Appellant.

No. 97 SSM 14
No. 98 SSM 15
No. 99 SSM 16
No. 100 SSM 17
No. 106 SSM 18
No. 101 SSM 19
No. 102 SSM 20
No. 103 SSM 21
No. 104 SSM 22
No. 105 SSM 28

Court of Appeals of New York.

December 15, 2020


164 N.E.3d 241

OPINION OF THE COURT

MEMORANDUM.

140 N.Y.S.3d 435
36 N.Y.3d 1017

In each appeal, the order of the Appellate Division should be reversed and the case remitted to that court for further proceedings in accordance with this memorandum.

The waivers of the right to appeal were invalid and unenforceable pursuant to our analysis in People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019]. It is well-settled that "a waiver of the right to appeal is not an absolute bar to the taking of a first-tier direct appeal" ( id., at 558, 122 N.Y.S.3d 226, 144 N.E.3d 970, citing People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ; People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ; People v. Hansen, 95 N.Y.2d 227, 230–231, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ). Nonetheless, in each case, among other infirmities, the rights encompassed by an appeal waiver were mischaracterized during the oral colloquy and in written forms executed by defendants, which indicated the waiver was an absolute bar to direct appeal, failed to signal that any issues survived the waiver and, in the Queens and Orleans Counties cases, advised that the waiver encompassed

36 N.Y.3d 1018

"collateral relief on certain nonwaivable issues in both state and federal courts" ( Thomas, 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ), containing language similar to the waivers invalidated in the Thomas companion cases, Lang and Green. Viewing these deficiencies in the context of the record in each case and considering the totality of the circumstances, including in several cases defendants' significant mental health issues (see People v. Bradshaw, 18 N.Y.3d 257, 262, 273, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ), we cannot say that "defendants comprehended the nature [and consequences] of the waiver of appellate rights" ( Thomas, at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970, quoting People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).* Accordingly, we reverse and remit to the Appellate Division for consideration of issues raised but not decided on the appeal to that court due to

140 N.Y.S.3d 436
164 N.E.3d 242

the enforcement of defendants' appeal waivers.

In People v. Torres and People v. Biaselli , defendants' challenges to the Appellate Division's resolution of other issues (relating to an order of protection and a sentencing promise, respectively), which are not preserved, are beyond further review by this Court.

GARCIA, J. (dissenting in People v. Daniels and otherwise concurring in result):

In each of the ten cases under review here, the Appellate Division upheld the validity of the defendant's waiver of the right to appeal. Today, we reverse all ten of those decisions. The rules changed. As the majority decision makes clear, the waivers in these cases are now "invalid and unenforceable pursuant to our analysis in

36 N.Y.3d 1019

People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019]" (majority mem. at 1017, 140 N.Y.S.3d at 435, 164 N.E.3d at 241). Thomas did indeed drastically change New York's approach to appeal waivers, for the most part making any individual assessment of the voluntariness of each defendant's waiver irrelevant. While I continue to disagree with the majority's reasoning in Thomas, I agree that it controls here in nine of the cases and, in those nine, I concur in result. In the tenth case, People v. Daniels , the majority goes beyond what even Thomas requires, essentially closing off one of the few remaining avenues for appellate courts to uphold voluntary waivers of the right to appeal. In Daniels, therefore, I dissent.

I.

In People v. Thomas, this Court wrote reassuringly that "[o]ur primary task is to determine whether, under the circumstances of each case, the mischaracterizations impacted the knowing and voluntary nature of the three appeal waivers" at issue ( 34 N.Y.3d at 552, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). We maintained that we were simply "[a]dhering to our well-established precedent in reviewing the validity of appeal waivers" in upholding the waiver in one case and holding the waivers invalid in the other two ( id. ).1 In dissent, I expressed concern that we were abandoning our "sensible standard" for evaluating appeal waivers and substituting an approach that "examines whether the trial court's description of the waiver was ‘improper’ or somehow ‘irredeemable under the circumstances’ " ( id. at 573, 122 N.Y.S.3d 226, 144 N.E.3d 970 [Garcia, J., dissenting]). I anticipated that "[a]ny waiver resembling those in Green and Lang [would be] prone to attack" ( id. at 585, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see majority mem. at 1018, 140 N.Y.S.3d at 435, 164 N.E.3d at 241 [waivers rejected in the ten cases here "contain( ) language similar to the waivers invalidated in the Thomas companion cases, Lang and Green "]). This, in turn, would unravel defendants' bargains, undermine the finality of their convictions, and enlarge the case load of our already burdened appellate courts ( Thomas, 34 N.Y.3d at 585–586, 122 N.Y.S.3d 226, 144 N.E.3d 970 [Garcia, J., dissenting]). Thomas has taken the predictable toll.

36 N.Y.3d 1020

II.

In the year since the case was decided, appellate courts in New York, citing

140 N.Y.S.3d 437
164 N.E.3d 243

Thomas, have invalidated 90 appeal waivers.2

It is clear to the Appellate Division Departments that the rules have changed:

"We have previously held that an overbroad appeal waiver would remain knowing, intelligent and voluntary, but that any nonwaivable rights would be ‘excluded from [its] scope’ ( People v. Gruber, 108 A.D.3d 877, 878, 969 N.Y.S.2d 586 [2013], lv denied 22 N.Y.3d 956, 977 N.Y.S.2d 187, 999 N.E.2d 552 [2013] ; see People v. Norton, 9 A.D.3d 741, 742, 779 N.Y.S.2d 865 [2004] ; People v. Wagoner, 6 A.D.3d 985, 986, 777 N.Y.S.2d 522 [2004] ; People v. Umber, 2 A.D.3d 1051, 1052, 769 N.Y.S.2d 632 [2003], lv denied 2 N.Y.3d 747, 778 N.Y.S.2d 472, 810 N.E.2d 925 [2004] ). The Court of Appeals has recently advised, however, that an appeal waiver is not ‘knowingly or voluntarily made in the face of erroneous advisements warning of absolute bars to the pursuit of all potential remedies, including those affording collateral relief on certain nonwaivable issues in both state and federal courts’ ( People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ). Accordingly, we are constrained to hold that defendant's appeal waivers are invalid given the confusion as to their impact" ( People v. Barrales, 179 A.D.3d 1313, 1314–1315, 118 N.Y.S.3d 263 [3d Dept. 2020] ).

In another example, the Appellate Division, having previously upheld an appeal waiver, vacated that order after Thomas was decided, and instead held that same appeal waiver invalid because the trial court "mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal, and failed to inform the defendant that appellate review remained available for certain issues" ( People v. Robinson, 189 A.D.3d 893, ––––, 133 N.Y.S.3d 448, 2020 N.Y. Slip Op. 07227, *1 [2d Dept. 2020], vacating 184 A.D.3d 779, 124 N.Y.S.3d 200 [2d Dept. 2020] ).

The effect can also be seen in the general approach taken by appellate courts in finding waivers invalid. Rather than engage in an assessment of the voluntariness of the individual waiver, courts attempt to apply the "checklist of errors" identified in Thomas. Unfortunately, other than identifying "errors," that case offers no guidance as to how to assess those misstatements in determining whether the waiver is somehow "irredeemable"

36 N.Y.3d 1021

(see Thomas, 34 N.Y.3d at 584, 122 N.Y.S.3d 226, 144 N.E.3d 970 [Garcia, J., dissenting] [noting...

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62 practice notes
  • People v. Avera, 109263
    • United States
    • New York Supreme Court Appellate Division
    • March 25, 2021
    ...oral colloquy did not ensure that defendant knowingly, intelligently and voluntarily waived this important right (see People v. Bisono, 36 N.Y.3d 1013, 1017–1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ; People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People......
  • People v. Ogando, 2016-11351
    • United States
    • New York Supreme Court Appellate Division
    • May 19, 2021
    ...the matter to this Court for consideration of issues raised but not determined on the appeal to this Court (see People v. Bisono, 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239 ). Justice Brathwaite Nelson has been substituted for former Justice Maltese (see 22 NYCRR 1250.1 [b]).ORDERED t......
  • People v. Hope, 2018–07862
    • United States
    • New York Supreme Court Appellate Division
    • March 24, 2021
    ...record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bisono, 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). The Supreme Court's colloquy &q......
  • People v. DeJesus-Ocasio, 110146
    • United States
    • New York Supreme Court Appellate Division
    • March 11, 2021
    ...A.D.3d 979, 980, 119 N.Y.S.3d 310 [2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 819, 151 N.E.3d 500 [2020] ; see also People v. Bisono, 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020]). In view of the foregoing, the appeal waiver was invalid and does not preclude defendant from cha......
  • Request a trial to view additional results
62 cases
  • People v. Avera, 109263
    • United States
    • New York Supreme Court Appellate Division
    • March 25, 2021
    ...oral colloquy did not ensure that defendant knowingly, intelligently and voluntarily waived this important right (see People v. Bisono, 36 N.Y.3d 1013, 1017–1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ; People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People......
  • People v. Ogando, 2016-11351
    • United States
    • New York Supreme Court Appellate Division
    • May 19, 2021
    ...the matter to this Court for consideration of issues raised but not determined on the appeal to this Court (see People v. Bisono, 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239 ). Justice Brathwaite Nelson has been substituted for former Justice Maltese (see 22 NYCRR 1250.1 [b]).ORDERED t......
  • People v. Hope, 2018–07862
    • United States
    • New York Supreme Court Appellate Division
    • March 24, 2021
    ...record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bisono, 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). The Supreme Court's colloquy &q......
  • People v. DeJesus-Ocasio, 110146
    • United States
    • New York Supreme Court Appellate Division
    • March 11, 2021
    ...A.D.3d 979, 980, 119 N.Y.S.3d 310 [2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 819, 151 N.E.3d 500 [2020] ; see also People v. Bisono, 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020]). In view of the foregoing, the appeal waiver was invalid and does not preclude defendant from cha......
  • Request a trial to view additional results

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