Shortly before Christmas, the New York Court of Appeals, in a two-page memorandum opinion, decided People v. Bisono, 2020 N.Y. Slip. Op. 07484, which consolidated 10 cases for review. In all 10, the court held that the defendant’s waiver of the right to appeal was invalid. In each, the court could not say with confidence that the “defendant[] comprehended the nature (and consequences) of the waiver of appellate rights.” It therefore reversed the 10 cases and remitted them to the Appellate Division for consideration of the issues left undecided due to the erroneous enforcement of the waivers. Reversing 10 cases in one fell swoop is almost certainly unprecedented.

Judge Garcia concurred in nine of the 10 cases, but reluctantly. He lamented what he saw as the court’s increasingly strict scrutiny of appellate waivers, as exemplified in its decision last term in Thomas, 34 N.Y.3d 545 (2019). That approach, he argued, has “taken [its] predictable toll” of “unravel[ing] defendants’ bargains, undermin[ing] the finality of their convictions, and enlarg[ing] the case load of our already burdened appellate courts.” In the year since Thomas was decided, the Appellate Division invalidated 90 appeal waivers. (That number is not aberrant: In the five years before Thomas, the Appellate Division invalidated more than 380 waivers. The figure comes from Justice Scheinkman’s concurring opinion in People v. Batista, 167 A.D.3d 69 (2d Dept. 2018).) In an Appendix to his opinion, Judge Garcia identified the 90 cases.

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