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In response to David Loftis' letter, Appeal Waivers Are Not Truly Voluntary (Nov. 15, 2018), I would like to offer a different perspective on appeal waivers in criminal cases, one that situates them in the context in which they are made.

The settlement of a case signifies the end—not the beginning or continuation—of litigation. This is true in both civil litigation and criminal cases. By pleading guilty, the accused is conceding that the People have the requisite proof beyond a reasonable doubt and that a trial is unnecessary. Typically, the relinquishment of trial-based rights is given in exchange for some benefit at sentencing. The parties have reached a mutual agreement, and the case should end.

One of Mr. Loftis' arguments is that appeal waivers prevent further litigation of issues raised before the lower court, such as unlawful searches, statements, or identifications. This is true. But that is because the case has ended. If, in a given case, the defense believes it has a strong case on appeal to overturn a judge's suppression ruling, the defendant should reject the plea bargain and either proceed to trial or plead guilty to the accusatory instrument without a bargain or appeal waiver. Under CPL §710.70(2), an appeal of a suppression issue is not foreclosed by a guilty plea. This allows the defendant to continue to litigate a meritorious claim. Of course, he or she also runs the risk that an appellate court will agree with the lower court and find the evidence is admissible. The defendant, with the aid of counsel, must make a decision based on the strength of the defense case. The choice remains with the defendant, not the People or the trial court.

However, the defense should not be allowed to have it both ways: to get the benefit of a negotiated plea bargain while then dragging out the litigation in what are already overburdened appellate courts. Appellate litigation is not without costs. The indigent defendant is entitled to a court-appointed lawyer, the People must assign an assistant to write and argue a brief, and the intermediate appellate court must take the time to hear and decide the case. Doing all of this in the context of where the parties have come together to reach an agreement is a waste of resources for all sides and the court.

Some of the claims that defendants attempt to raise on appeal, even where there was a guilty plea, are illustrative of this policy concern. For example, the Appellate Division has the power to reduce excessive sentences “in the interest of justice.” Ironically, this type of claim is permitted even in a case where there was a negotiated plea bargain and the defendant agreed to the imposition of a particular sentence or range. Without an appeal waiver, he or she is allowed to waste the time of the courts in arguing that the sentence he or she agreed to at the plea stage (and received at sentencing) was somehow “excessive.”

And so, it is no wonder that district attorneys and some judges insist on appeal waivers as part of guilty pleas. But the choice to accept or reject such a waiver always remains with the defendant, a point the Court of Appeals emphasized in People v. Seaberg, 74 N.Y.2d 1, 8-9 (1989), when it upheld the constitutionality of appeal waivers. People v. Batista, 2018 N.Y. Slip Op. 7445 (2d Dept. Nov. 7, 2018), reminds plea courts that they must not conflate appeal waivers with the litany of rights that a defendant gives up by pleading guilty.

Thus, it is immaterial whether such waivers are asked for “across-the-board”; an individual defendant is always free to reject it. If the defendant believes he or she has a strong case on appeal, then rejecting the plea bargain will ultimately be beneficial in the long run. But it is understandable that district attorneys would not want to provide a benefit and then find themselves having to continue litigating meritless arguments for years on appeal. If, for some reason, the appellate court reverses, it will be that much more difficult to put on a case years after the victim and witnesses believed a case was concluded. There is a strong societal interest in achieving finality to criminal litigation, a point that Seaberg, 74 N.Y.2d at 8, emphasized in upholding appeal waivers. Indeed, there is nothing magical about the right to appeal that should place it in a superior position to the right to a jury trial, to put the People to their burden, to confront witnesses, and to present a defense, all of which are rights that may be waived.

Finally, it is worth noting that our courts have upheld certain protections in this process. First, they are strict in requiring that plea colloquies not conflate the right to appeal with the rights that are given up by pleading guilty, as illustrated by People v. Lopez, 6 N.Y.3d 248 (2006), and its companion cases. Second, defendants still have the ability to challenge the voluntariness of guilty pleas and the legality of their sentences, both of which survive a waiver, as the court held in Seaberg, 74 N.Y.2d at 9.

At a time when our courts—particularly our intermediate appellate courts—are stretched thin (see Andrew Denney, “NY Appeals Judges Say Trial Courts Should Act to Quell Appeal Waiver Challenges,” N.Y.L.J., Nov. 9, 2018 (noting the delays in the overburdened Second Department)), precious judicial resources should be reserved for those cases where there are meritorious arguments in live cases, not ones where the parties have concluded that litigation should end. If the defendant in a particular case disagrees, he or she should reject any plea offer that contains an appeal waiver, proceed to trial, and, if convicted, litigate an appeal, as is his or her constitutional right.

Larry Cunningham is the Associate Dean for Assessment and Institutional Effectiveness at St. John's Law School, where he is also a Professor of Legal Writing and Director of the Center for Trial and Appellate Advocacy. He authors a blog, New York Criminal Law and Procedure, www.nycrimblog.com.