SUMMARY

In a July 15, 2026 letter, the Criminal Courts Committee and Criminal Justice Operations Committee urged Governor Kathy Hochul to sign S.329-A (Sen. Bailey) / A.673-A (AM Cruz), which the Legislature passed with overwhelming support. The bill would amend Criminal Procedure Law § 710.70(2) to permit defendants to challenge a trial court’s denial of a suppression motion on appeal, regardless of whether they agreed to an appeal waiver. The City Bar has supported this legislation since 2021, arguing that appeal waivers insulate police misconduct from appellate review. The letter appends the City Bar’s report on the legislation.

BILL INFORMATION

A.673-A (AM Cruz) / S.329-A (Sen. Bailey) – Relates to facilitating appellate review of rulings that implicate issues of public concern (NYS 2026)

REPORT

July 15, 2026

Hon. Kathy Hochul
Governor of the State of New York
New York State Capitol Building
Albany, NY 12224

RE:     Urging enactment of S.329-A (Sen. Bailey) / A.673-A (AM Cruz), facilitating appellate review of rulings that implicate issues of public concern

Dear Governor Hochul,

The Criminal Courts Committee and the Criminal Justice Operations Committee of the New York City Bar Association[1] urge you to sign S.329-A / A.673-A, which the Legislature passed with overwhelming support into law. The legislation would amend Criminal Procedure Law section 710.70 (2) to permit a defendant to challenge the trial court’s denial of their motion to suppress evidence on appeal regardless of whether they agreed to an otherwise valid appeal waiver. The City Bar has supported this legislation since 2021 and believes it would be a significant step in the right direction.[2]

I.  BACKGROUND

In New York, more than 95 percent of criminal convictions are the result of guilty pleas.[3] In many of those cases, as part of the bargaining process, defendants agree to waive their right to appeal. As the name might suggest, an appeal waiver precludes defendants from raising certain issues on appeal. The common justification for allowing defendants to waive their right to appeal in the negotiation process is that plea bargains “should signal an end to litigation, not a beginning,” and that “the final and prompt conclusion of litigation is an important goal of public policy” in criminal litigation. See People v. Seaberg, 74 N.Y.2d 1, 8 (1989). Thus, a defendant who validly waives their right to appeal will ordinarily be precluded from arguing to the Appellate Division that their sentence is excessive and should be reduced in the interest of justice.

However, the term “appeal waiver” is a misnomer, because from the start, the Court of Appeals has held that there are certain claims that a defendant cannot waive even if they agree to an appeal waiver, including constitutional speedy trial claims, the legality of their sentence, and their competency to stand trial. See Seaberg, 74 N.Y.2d at 9. Most recently, the Court held that defendants cannot waive facial constitutional challenges to their crimes of conviction. See People v. Johnson, — N.Y.3d —, 2025 WL 3259873 (2025). The Court has explained that these claims cannot be waived because they “transcend the individual concerns of the defendant” and “implicate society’s interest in the integrity of [the] criminal process,” outweighing any alleged benefit of finality in the individual case. Seaberg, 74 N.Y.2d at 9. The Court has not included challenges to denials of motions to suppress this class of claims. In practical terms, this means that if a defendant believes that the police unlawfully stopped and searched them, or interrogated them, or conducted an unduly suggestive identification procedure with a witness, and that the trial court erred in holding otherwise, an appellate court will not consider that claim if the defendant validly agreed to an appeal waiver as a component of their guilty plea.

Additionally, a valid appeal waiver must be knowing, voluntary, and intelligent. See People v. Thomas, 34 N.Y.3d 545, 560 (2019). The trial court must make sure that a defendant, given their age, experience, and background, understands the terms of an appeal waiver and that their understanding is apparent on the record. See id. In many cases, appellate courts have held that a defendant’s appeal waiver was invalid, allowing them to consider the issues that the defendant raised on the merits. See, e.g., id. at 565. Accordingly, it is common for defendants who agree to appeal waivers to challenge those waivers on appeal, and to brief any issue they want the appellate court to consider on the merits in case their challenge to the waiver is successful.

II.  THE LEGISLATION’S BENEFITS

Most critically, allowing defendants to raise suppression issues on appeal regardless of a valid appeal waiver ensures that police misconduct is not insulated from appellate review. On an individual level, evidence that the police unlawfully obtained through a seizure or interrogation that violated a person’s constitutional rights, and police-arranged identification procedures that are unduly suggestive—a contributor to wrongful convictions—should not be the basis of a defendant’s guilty plea. Appellate review is necessary to catch instances of misconduct that slipped past the trial court, and it develops the law so that trial courts are best equipped to make the correct decision in the first instance. Appeal waivers have stymied that development for too long, leaving trial courts without guidance that would aid their day-to-day decisions.

Moreover, allowing defendants to raise suppression issues on appeal despite a valid appeal waiver would have significant societal benefits. It would ensure that instances of police misconduct are visible to the public, who can read appellate court decisions and better understand their constitutional rights. Relatedly, greater scrutiny of police misconduct would discourage law enforcement from committing it. Indeed, the very purpose of suppressing unconstitutionally obtained evidence is to incentivize the police to respect our constitutional rights.  More meaningful access to appellate review would also increase public confidence in the system to root out police misconduct, rather than rubber stamp it in the name of efficiency and “finality.”

Separately, as Chief Judge Rowan D. Wilson wrote in 2019, appeal waivers have “wreaked havoc on the lower courts, district attorneys, defense counsel, and defendants” and are “not worth any of the hypothetical benefits purportedly bestowed.” Thomas, 34 N.Y.3d at 45 (Wilson, J., dissenting). Although appeal waivers have been justified as imposing finality in cases where defendants plead guilty, they only make appeals more complicated in fact. Even when a defendant agrees to appeal waivers, they still brief issues on the merits on appeal. The only difference is that they add an additional argument asserting that the appeal waiver they agreed to was invalid, for one reason or another, generally related to a deficiency in how the trial judge explained it. The prosecution, not wanting to risk being silent if the appellate court agrees that the appeal waiver was invalid, will respond to the defendant’s arguments on the merits, in addition to defending the waiver. The appellate court will read the briefing in full. The result is that appellate courts have developed different strains of case law explaining why certain appeal waivers are valid while others are not, using a totality of the circumstances approach that can make it hard for individual defendants to predict what will happen in their cases.

The appeal waiver jurisprudence has meant that appellate courts will consider suppression issues on the merits not based on the magnitude of the alleged police misconduct, or the significance of the police’s actions on the defendant’s decision to plead guilty, but rather whether the trial judge did a good enough job explaining the appeal waiver to the defendant. In none of these cases do appeal waivers create true finality. This legislation recognizes the reality of appeal waivers on the ground, and it removes an unworkable impediment to the appellate courts considering some of the most pressing constitutional issues in the legal system.

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For the forgoing reasons and as further discussed in our appended memo of support, the City Bar supports the enactment of S.329-A / A.673-A.  We urge you to sign the bill into law and would welcome the opportunity to answer any questions you or your staff may have.  Thank you for your consideration.

Respectfully,

Eric S. Fieldman, Co-Chair
Criminal Courts Committee

Jeffrey D. Linehan, Co-Chair
Criminal Courts Committee

James A. Aliaga, Chair
Criminal Justice Operations Committee