Monday, October 6, 2008

When Waiver of Appeal Does Not Encompass Sentencing Issue

Generally, the valid waiver by defendant of the right to appeal encompasses his challenges to the severity of the sentence (see People v Hidalgo, 91 NY2d 733, 737). There is an exception to this general rule. In People v Tolliver (2008 NY Slip Op 07341 [4th Dept 10/3/08]), the Court reaffirmed that even a valid waiver of the right to appeal does not encompass defendant's challenge to the severity of the sentence where the defendant waived his right to appeal before Supreme Court advised him of the maximum sentence that could be imposed (see People v Mingo, 38 AD3d 1270, 1271; see generally People v Lococo, 92 NY2d 825, 827).

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