The New York Court of Appeals had a message this week for judges who allow defendants to forfeit an appeal, in most cases, while pleading guilty to a crime: don't inflate what they're giving up—or don't be surprised when the case ends up before an appellate court.

The high court, in a decision handed down this week, struck down two so-called appeal waivers from cases in Western New York, calling them a "mischaracterization."

Two of the court's judges went as far as suggesting that appeal waivers, generally, have little to no value in the state court's system, often disenfranchise defendants because of their regular ambiguity, and could be done away with entirely.

One of them, Associate Judge Rowan Wilson, said a series of decisions from the high court on appeal waivers has led to a "tortured jurisprudence" that would confuse anyone in the state's justice system.

"The game is not worth the candle," Wilson said. "That is not to say this is a game: for many defendants, the harsh and chilling effect of appellate waivers results in the deprivation of their constitutional and statutory rights, far from anything one could, other than with great irony, call a game."

Wilson also said the use of appeal waivers could be detrimental to the state's criminal justice system as a whole, since they're primarily used to stop litigation from moving forward. That's partly a cost-saving measure for prosecutors, he said.

"To be clear, when we have said 'finality,' what we really mean is cost," Wilson wrote. "We also must recognize that we are balancing that cost against the actual and perceived fairness of the criminal justice system."

Chief Judge Janet DiFiore wrote the majority opinion of the court, which essentially decided that judges who preside over matters involving an appeal waiver should be prepared to explain what options a defendant is giving up while acknowledging that some appellate rights still exist.

"The improper description of the scope of the appellate rights relinquished by the waiver is refuted by our precedent, whereby a defendant retains the right to appellate review of very  selective fundamental issues, including the voluntariness of the plea and appeal waiver, legality of the sentence and the jurisdiction of the court," DiFiore wrote.

The decision concerned three separate cases brought before the Court of Appeals, which invalidated the appeal waivers used in two of those cases but upheld a third. The two struck down were from the same judge in Genesee County Court. The third was in the Bronx.

The latter was an appeal from Victor Thomas, who pleaded guilty in the Bronx to attempted assault in the first degree. He agreed to plead guilty in exchange for five years of prison time.

Before entering that plea, Thomas both signed a written appeal waiver and was given an oral appeal waiver by the judge. The written waiver said Thomas was giving up the right to file a notice of appeal, though it said there were a few exceptions to the agreement.

An attorney for Thomas argued before the Court of Appeals last month that the waiver didn't explain all the possible situations in which he could have sought an appeal.

But DiFiore said in the court's opinion this week that, while the judge may not have laid out every option, she didn't overstate what limits would be placed on Thomas' right to appeal. The judge also made sure Thomas understood the waiver, DiFiore wrote.

"Defendant does not have the right to subsequently eviscerate the favorable plea bargain he knowingly and voluntarily accepted," DiFiore wrote.

That wasn't the case for the other two defendants whose cases were decided by the Court of Appeals this week. The appeal waivers in those cases were unlawful, the court ruled.

That's because, DiFiore wrote, the judge did not accurately describe what appellate rights those defendants were giving up through the appeal waiver. The judge in both cases had essentially said their cases would be barred entirely from review.

"The improper description of the scope of the appellate rights relinquished by the waiver is refuted by our precedent, whereby a defendant retains the right to appellate review of very selective fundamental issues," DiFiore wrote.

Those cases involved Nicole Green, who pleaded guilty to burglary charges, and Storm U. Lang, who pleaded guilty to sexually abusing children. Both were prosecuted by the Genesee County District Attorney's Office.

When brought in to plead guilty, Green was presented by the judge with an appeal waiver. A written version of that waiver included a few exceptions where she would be allowed to pursue an appeal, but the judge suggested she would have no option for appellate review.

"There is just going to be no review by any other court," the judge said at one point. 

Similar language was used by the same judge when Lang appeared to plead guilty in court. Neither Green nor Lang were ultimately asked if they understood the contents of the written appeal waiver.

The judge, former Genesee County Court Judge Robert Noonan, erred when he told both Green and Lang they would, broadly, have no leeway if they thought grounds may exist for them to seek an appeal. DiFiore called Noonan's remarks "erroneous advisements."

"We cannot conclude that the appeal waivers on the records in Green and Lang were knowingly or voluntarily made in the face of erroneous advisements warning of absolute bars to the pursuit of all potential remedies," DiFiore wrote.

Associate Justice Michael Garcia strongly criticized the majority's decision to strike down the appeal waivers used for Green and Lang. He said that, through the decision, the court was creating a rule that will change the plea bargaining process entirely.

He warned that, when an appeal waiver is used, judges will now be wary to express the extent to which defendants have agreed to forfeit their rights. 

"In each of these three cases, the trial court went to great lengths to impress upon the defendant that a waiver of the right to appeal is important, expansive, and should not be taken lightly. That approach has now been condemned," Garcia said. 

"The result is an unfortunate one: waivers will only be less knowing, less intelligent, and less voluntary," he continued.

Associate Justice Jenny Rivera, in a separate opinion, said she agreed with Wilson that appeal waivers "have proved unworkable," and should no longer be used to nail down a plea agreement. 

Genesee County Assistant District Attorney Shirley Gorman said Wednesday the decision will provide clarity for all parties involved, prosecutors included, on when an appeal waiver is valid.

"I think it is useful to all parties in the criminal justice system that the court has spoken, at length, about what's expected when waiving the right to appeal certain issues," Gorman said. "Obviously, as they made clear, you never give up your right to appeal everything because issues survive."

The Bronx District Attorney's Office declined to comment.

Thomas was represented by Louis O'Neill from White & Case in Manhattan. Green and Land were represented by attorneys James Specyal and Susan Ministero, respectively, from the Legal Aid Bureau of Buffalo. 

O'Neill said the majority's reasoning in its opinion should have also applied to the appeal waiver used with Thomas, and that he was considering seeking review of the decision by the U.S. Supreme Court. That's the last stop after a decision from the state Court of Appeals.

"As Judge Wilson noted in dissent, today's decision further muddies New York State's 'tortured jurisprudence' on appeal waivers," O'Neill said.

"The majority properly found that language in appeal waivers which purports to prevent an appellant from filing a notice of appeal is 'incorrect.' But that finding should have voided the waiver and allowed review of Mr. Thomas' substantive claims," he continued.

Specyal said he predicted future challenges to appeal waivers will be measured against the decision handed down Tuesday. He saw the decision as a clarification, rather than a new rule.

"What's going to happen in future cases, I think, is we're going to have to take a look and debate if the waiver was as mischaracterized as the one found in Green," Specyal said. "I don't think it's a whole new rule but what I do think could happen is that we're going to have figure out how inaccurate these things can be before they're invalid."

Wilson was the lone dissenting judge on the court's decision to uphold the appeal waiver in Thomas' case. Garcia, meanwhile, was the only judge that disagreed with the court's decision to reverse the appeal waivers in the cases of Green and Lang.

READ MORE: