People v. Thomas, No. 87, No. 88, No. 89

CourtNew York Court of Appeals
Writing for the CourtDiFIORE, Chief Judge.
Citation34 N.Y.3d 545,144 N.E.3d 970,122 N.Y.S.3d 226
Parties The PEOPLE of the State of New York, Respondent, v. Victor THOMAS, Appellant. The People of the State of New York, Respondent, v. Nicole L. Green, Also Known as Nicole Green, Appellant. The People of the State of New York, Respondent, v. Storm U. Lang, Also Known as Storm U.J. Lang, Also Known as Storm Lang, Appellant.
Docket NumberNo. 87, No. 88, No. 89
Decision Date26 November 2019

34 N.Y.3d 545
144 N.E.3d 970
122 N.Y.S.3d 226

The PEOPLE of the State of New York, Respondent,
v.
Victor THOMAS, Appellant.

The People of the State of New York, Respondent,
v.
Nicole L. Green, Also Known as Nicole Green, Appellant.

The People of the State of New York, Respondent,
v.
Storm U. Lang, Also Known as Storm U.J. Lang, Also Known as Storm Lang, Appellant.

No. 87, No. 88, No. 89

Court of Appeals of New York.

November 26, 2019


OPINION OF THE COURT

DiFIORE, Chief Judge.

34 N.Y.3d 552

In these three consolidated appeals, the defendants' written waivers of the right to appeal contained mischaracterizations of the scope of the appellate rights waived as a condition of the plea bargains. In two of the three cases, the trial courts' colloquies, in eliciting defendants' oral waivers, similarly mischaracterized the appellate rights surrendered. Our 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 before us. Adhering to our well-established precedent in reviewing the validity of appeal waivers, we affirm in People v. Thomas , as the appeal waiver was knowingly and voluntarily entered. We reverse in People v. Green and People v. Lang , as the appeal waivers were involuntarily made and thus are not enforceable.

People v. Thomas

By indictment, defendant Victor Thomas was charged with class B violent felonies of first-degree assault and first-degree gang assault, and related crimes. He was identified by a police officer who recognized him, based on previous arrests, as

144 N.E.3d 974
122 N.Y.S.3d 230

the man in surveillance video pointing a gun at people attempting to assist the victim during a gang assault. While in custody at the precinct and prior to Miranda warnings, a detective showed Thomas a still photo taken from the video to answer Thomas' repeated questions as to why he was being detained. Immediately upon viewing the photo, Thomas stated: "You got me." Supreme Court denied his motion to suppress this oral

34 N.Y.3d 553

statement on the ground that it was spontaneously made and not the result of interrogation or its functional equivalent.

The following day, Thomas pled guilty as a second-felony offender to a reduced class C violent felony charge of first-degree attempted assault in exchange for the promise of the legal minimum sentence of five years in prison to be followed by five years of postrelease supervision (PRS). This was the same plea offer made before the suppression hearing was held. Thomas waived his right to appeal both orally and in writing as a condition of the plea bargain. During the oral plea colloquy, the trial court elicited from defendant his understanding that, "separate and apart" from the constitutional trial rights he waived, he was being asked to give up the right to appeal, meaning "to challenge to a higher court what is taking place right now, the plea and what will take place in about two weeks when you are sentenced." The written waiver form he and his attorney signed stated that, in consideration of the plea agreement, defendant "waives any and all rights to appeal including the right to file a notice of appeal from the judgment of conviction," with the exception of any constitutional speedy trial claim, the legality of sentence, competency to stand trial and "the voluntariness of this plea and [appeal] waiver." The court elicited defendant's acknowledgement that he "had a full opportunity" to consult with counsel "about what signing this waiver means" and the rights he was "giving up."

At sentencing, the court imposed upon defendant the promised legal minimum term and advised defense counsel to provide Thomas "with a notice of right to appeal for any rights that may survive that waiver." Defendant timely filed a notice of appeal and, on direct appeal, sought review of the validity of the appeal waiver and the order denying his motion to suppress his oral statement. The Appellate Division affirmed, holding that defendant's valid waiver of the right to appeal precluded review of the suppression ruling; in the alternative, the Court agreed with the suppression court that defendant's statement was spontaneous and not the product of interrogation ( 158 A.D.3d 434, 70 N.Y.S.3d 190 [1st Dept. 2018] ). A Judge of this Court granted defendant leave to appeal ( 31 N.Y.3d 1088, 79 N.Y.S.3d 110, 103 N.E.3d 1257 [2018] ).

People v. Green

After waiving indictment, defendant Nicole Green was charged by superior court information (SCI) with three counts of burglary in the second degree, class C violent felonies. Defendant

34 N.Y.3d 554

pled guilty to one reduced count of attempted second degree burglary, a class D violent felony, in exchange for an initial sentence promise of a six-year prison term and three years of PRS. The court left open the possibility that the sentence could run consecutive to a nine-year prison sentence Green was then serving. A waiver of the right to appeal was a condition of the plea bargain offer. In describing the waiver, the court advised Green that:

"ordinarily, ... after somebody is convicted and sentenced in this court, they have the right to file an appeal to the Appellate Division Fourth Department. Some people get to take an appeal to the highest Court in the state after that, the
144 N.E.3d 975
122 N.Y.S.3d 231
Court of Appeals. Some people exhaust their state appeals and file appeals in the federal system. Some people come back here and ask to have their conviction vacated or modified.

The [P]eople have indicated that in order to give you this cap on sentence, they are requiring you to waive your right to appeal; and once you are convicted and sentenced here, there will be no review by any other court. Do you understand that?"

Green answered that she did. The court next asked:

"Do you understand that waiver goes to almost all issues of conviction and sentence, including the terms and length of your sentence, whether your sentence is excessive, you won't be able to hire an attorney to file an appeal for you, you won't get an assigned attorney to file an appeal for you, you won't be able to file your own appeal, you won't get waived filing fees. There is just going to be no review by any other court."

Green again confirmed that she understood and the court directed her to sign a written appeal waiver form stating that she was waiving "all rights to appeal," including her rights to take an appeal, to file a brief, to have counsel appointed if she could not afford one, to argue the appeal before an appellate court and to seek postjudgment CPL article 440 relief to vacate the conviction or sentence. Beneath that language, the form listed four issues that were excepted from the appeal waiver, including the voluntariness of the waiver. The court did not allocute Green as to whether she understood the form's contents.

34 N.Y.3d 555

Green then admitted her guilt of the charged burglary. After a brief recess and alerted by the prosecutor that a mandatory five-year PRS period was required as Green was a second violent felony offender, the court corrected the sentencing promise with respect to PRS. Green reaffirmed her acceptance of the plea bargain deal with the revised five-year PRS term, confirming that she did not want to withdraw her guilty plea. Counsel made it clear that Green's only concern was that the plea offer still included the possibility of concurrent time. Green then admitted her predicate violent felony conviction and was adjudicated a predicate felon. At sentencing, the court again asked if Green understood that the promised offer included the increased PRS term. After consulting with counsel, Green maintained her guilty plea and the court imposed the promised sentence but ordered it to run consecutively to the previously imposed sentence. The court advised defendant: "you waived your right to appeal at the time you entered the plea. If you intend to challenge that waiver, you would have to do so within 30 days or you lose your right to appeal forever." Defendant agreed that she understood. Green, proceeding pro se, sought and received permission to file a late notice of appeal. On direct appeal, appellate counsel challenged the validity of the appeal waiver and raised an excessive sentence claim based on the consecutive sentences imposed. The Appellate Division affirmed, declining to review the sentence claim as precluded by a valid appeal waiver ( 160 A.D.3d 1422, 72 N.Y.S.3d 870 [4th Dept. 2018] ). A Judge of this Court granted defendant leave to appeal ( 32 N.Y.3d 1004, 86 N.Y.S.3d 762, 111 N.E.3d 1118 [2018] ).

People v. Lang

Seventeen-year-old defendant Storm Lang was charged by felony and misdemeanor complaints with four felony counts of sexual abuse, and two misdemeanor counts of sexual abuse stemming from his sexual assault of three children ages five, seven and twelve years old. Held for the action of the grand jury on six counts as

144 N.E.3d 976
122 N.Y.S.3d 232

charged in the complaints by two separate local courts, Lang agreed to waive prosecution by indictment after the County Court thoroughly explained his right to have the crimes presented to a grand jury and the consequences of waiving prosecution by indictment. After Lang confirmed that he had reviewed the indictment waiver form, the court directed him to sign the waiver, which he did in open court and in the presence of counsel. Accompanying the indictment waiver form was the SCI, which repeated the factual allegations of the six

34 N.Y.3d 556

counts of sexual abuse charged in the felony and misdemeanor complaints, including the place and designated dates of each crime. In contrast, the waiver of indictment form identified the six counts of sexual abuse for which prosecution by indictment was waived, without mentioning any date, approximate time or place of the offenses as prescribed by CPL 195.10.

The plea bargain offer required Lang to waive his right to appeal and plead guilty to two...

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462 practice notes
  • People v. Bisono, No. 97 SSM 14
    • United States
    • United States Court of Appeals (New York)
    • December 15, 2020
    ...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......
  • People v. Bowman, 110475
    • United States
    • New York Supreme Court Appellate Division
    • May 6, 2021
    ...( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] [citation omitted]; see People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ). " ‘In determining whether the record demonstrates that a defendant understood an appeal waiver's conse......
  • People v. Guerrero, 110405
    • United States
    • New York Supreme Court Appellate Division
    • May 20, 2021
    ...33 N.Y.3d 1109, 106 N.Y.S.3d 656, 130 N.E.3d 1266 [2019] ). As we discern no other infirmities in the waiver (compare People v. Thomas, 34 N.Y.3d 545, 562–563, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ), "we find that defendant's combined oral and written waiver of appeal was knowing, i......
  • People v. Sutton, 2016–07006
    • United States
    • New York Supreme Court Appellate Division
    • June 17, 2020
    ...to participate in plea negotiations, plea bargaining is established as a vital part of our criminal justice system (see People v. Thomas, 34 N.Y.3d 545, 557–558, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Seaberg, 74 N.Y.2d 1, 7–8, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ). For the parties, ach......
  • Request a trial to view additional results
462 cases
  • People v. Bisono, No. 97 SSM 14
    • United States
    • United States Court of Appeals (New York)
    • December 15, 2020
    ...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......
  • People v. Bowman, 110475
    • United States
    • New York Supreme Court Appellate Division
    • May 6, 2021
    ...( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] [citation omitted]; see People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ). " ‘In determining whether the record demonstrates that a defendant understood an appeal waiver's conse......
  • People v. Guerrero, 110405
    • United States
    • New York Supreme Court Appellate Division
    • May 20, 2021
    ...33 N.Y.3d 1109, 106 N.Y.S.3d 656, 130 N.E.3d 1266 [2019] ). As we discern no other infirmities in the waiver (compare People v. Thomas, 34 N.Y.3d 545, 562–563, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ), "we find that defendant's combined oral and written waiver of appeal was knowing, i......
  • People v. Sutton, 2016–07006
    • United States
    • New York Supreme Court Appellate Division
    • June 17, 2020
    ...to participate in plea negotiations, plea bargaining is established as a vital part of our criminal justice system (see People v. Thomas, 34 N.Y.3d 545, 557–558, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Seaberg, 74 N.Y.2d 1, 7–8, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ). For the parties, ach......
  • Request a trial to view additional results

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