The legislation, S.B. 939/A.B. 152, would require courts to review denials of motions to suppress evidence on appeal even when defendants sign waivers of appeal. Advocates say these waivers "shield police misconduct, eliminate a vital oversight tool, and subvert the intent of the Legislature in establishing appellate review for all cases."
A spokesperson for the governor's office told Law360 that Hochul is reviewing the legislation.
Criminal defendants typically sign waivers of appeal as part of plea deals. These waivers give prosecutors a way around New York state's existing legislation saying appellate courts should be able to review suppression decisions even if the defendant pleads guilty.
But if Hochul signs the appeal waiver bill that was delivered to her on Tuesday, those waivers wouldn't stop courts from reviewing a trial judge's decision to allow evidence uncovered by law enforcement that the defense thinks should have been suppressed due to constitutional issues.
Lawrence T. Hausman, a supervising attorney for the Legal Aid Society's criminal appeals bureau, told Law360 Pulse on Thursday that these issues can touch on questions such as whether police conduct violated the Fourth Amendment, whether a confession was coerced and whether law enforcement used suggestive identification procedures.
"It's police conduct that's usually the central focus of a suppression ruling," he explained. "Our concern is that given the pervasive use of appeal waivers, you're not getting an appellate court to shine a spotlight on [and] to police conduct that is at the heart of the suppression hearings."
Hausman emphasized that appeals happen even if a defendant does sign an appeal waiver since appellate lawyers will look for issues with the waiver that they can take before an appellate court.
"The effect of the appeal waivers is to make the appellate litigation more complicated and to potentially prevent the review of the merits of a strong constitutional claim," he said.
Legal Aid was one of many state organizations to sign the letter in support of the bill, with others including the criminal defense clinic of Yeshiva University's Benjamin N. Cardozo School of Law, the Children's Defense Fund New York and the New York State Association of Criminal Defense Lawyers.
"When prosecutors routinely demand blanket appeal waivers even when police misconduct occurs, the deterrent effect of suppression can never operate as intended to deter constitutional violations," NYSACDL President Yung-Mi Lee said in a statement.
"We remind the governor of the multiyear, state-sanctioned 'reign of terror' on Black and brown New Yorkers that was 'stop and frisk.' Waivers clearly played an important role in keeping that racist practice alive," Lee said. "New York can make its criminal justice system fairer simply by enabling the Appellate Divisions to exercise their suppression review power unfettered, as originally intended."
--Editing by Robert Rudinger.
For a reprint of this article, please contact reprints@law360.com.
