Attorneys for three defendants who were asked to largely give up their right to appeal their case to a higher court, after each agreed to plead guilty to certain crimes, called that part of their plea agreement unconstitutional and asked the New York Court of Appeals to invalidate it Wednesday.

The state's highest court is expected to decide, through the cases, whether an appeal waiver should be considered unenforceable if it overstates what the defendant has legally agreed to give up.

One of the attorneys who appeared before the Court of Appeals on the issue Wednesday argued that the waivers amounted to "hoodwinking" defendants, and should be invalidated by the high court if misleading information is included.

"It's hoodwinking appellants. It's hoodwinking defendants," said Louis O'Neill, who's of counsel at White & Case in Manhattan. "It's giving false information."

O'Neill represents Victor Thomas, one of three separate defendants who signed an appeal waiver while pleading guilty to certain crimes.

Each defendant claims they were either asked to give up certain rights that are guaranteed to them through the state constitution, or weren't told about certain options they would have to pursue appellate review of their case in the future.

Thomas was accused by prosecutors in the Bronx of attacking someone in the early morning with three other men, who eventually slashed the victim after kicking and punching him. The victim had to receive 39 stitches on his face and shoulder, prosecutors said.

He agreed to plead guilty to attempted assault in the first degree, a felony, in exchange for a promised sentence of five years in state prison.

Before entering that plea, Thomas signed a written appeal waiver that indicated he would be giving up his "right to file a notice of appeal." The waiver said there were a few exceptions, such as if Thomas wanted to challenge the legality of his sentence, for example.

The judge presiding over the plea agreement also explained what he was giving up through the appeal waiver, but attorneys for Thomas have said the oral explanation wasn't sufficient.

O'Neill argued Wednesday that neither the oral explanation from the judge nor the written agreement laid out a complete list of situations where the defendant would be allowed to seek review by an appellate court despite the waiver. He said there were many such unwaivable issues in New York state law.

"There are 20 or more things that can never be waived under this state's jurisprudence," O'Neill said.

After he was sentenced, Thomas asked the Appellate Division, First Department in Manhattan to review the legality of the appeal waiver. The appellate court upheld the waiver, saying it "did not contain any language this Court has previously found to be unenforceable."

Associate Judge Eugene Fahey noted that, in the case of Thomas, it was the written appeal waiver that appeared to contain misleading information that would have led him to believe there was no opportunity to seek review by an appellate court.

Fahey asked, on more than one occasion, whether the Court of Appeals should consider examining the written appeal waivers in each case separately from the judge's oral explanations.

"It seemed like all the active language that was wrong in this one was all in the written waiver," Fahey said. "And I'm wondering if there's a distinction that needs to be drawn between the oral waiver and the written waiver."

Justin Braun, from the Bronx District Attorney's Office, argued that neither the oral nor the written appeal waiver contained language that should be considered unlawful by the court. He said it was a negotiated agreement that Thomas signed on to.

"Here, the 'no notice of appeal' waiver was obviously discussed in a way to show that some appellate rights survive, even in the waiver of appeal," Braun said. "I don't think this waiver has problematic language."

The other two cases were brought before the Court of Appeals by way of the Appellate Division, Fourth Department in Western New York.

Nicole Green pleaded guilty to a charge of attempted burglary in the second degree, while Storm U. Lang pleaded guilty to charges of sexual abuse in the first and second degrees. Both cases were in Genesee County Court.

Both Green and Lang signed appeal waivers during a court appearance on their plea agreements. Each contained language explaining both what they would be giving up, and some situations where they would be allowed to pursue an appeal.

In Green's case, for example, the judge told her that "there is just going to be no review in any other court," but also noted a few exceptions to the waiver.

Her attorney had argued, on appeal, that the waiver she agreed to was illegal because it asked her to waive rights that cannot be waived under the state constitution. Chief among them was the right to file an appeal, which is guaranteed in New York, her attorney said.

The Fourth Department rejected both attempts by Green and Lang to invalidate the appeal waivers. In Lang's case, the appellate court conceded that the waiver contained "improperly overbroad language," but said that any part deemed unlawful should be tacitly ignored.

Both Green and Lang were represented before the Court of Appeals Wednesday by attorneys with the Legal Aid Bureau of Buffalo.

Susan Ministero, the chief attorney of appeals at the bureau, represented Lang. She argued that if an appeal waiver doesn't make clear to defendants that options still exist to seek appellate review, it should be thrown out.

When pressed on the role of attorneys and defendants to parse out what's included in such an appeal waiver, Ministero conceded that both the accused—and their lawyers—don't always know everything.

"Not all defendants are savvy and not all defense counsels are competent and diligent," Ministero said.

Shirley Gorman, an attorney from the Genesee County District Attorney's Office, argued that, in cases where an appeal waiver, whether oral or written, is seen as overbroad, courts have the ability to enforce only what's enforceable.

"In a situation like this, as courts are holding where it's overbroad, enforce the enforceable," Gorman said.

Green was represented before the Court of Appeals by James Specyal, who's also an attorney with the bureau.

The Court of Appeals will likely hand down a single decision enveloping the conflict in all three cases sometime next month.

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