People v. Bourne

• Decision Date: 21 July 1988
• Citation: 531 N.Y.S.2d 899,139 A.D.2d 210
• Parties: The PEOPLE of the State of New York, Respondent, v. Terrence BOURNE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 899

531 N.Y.S.2d 899

139 A.D.2d 210

The PEOPLE of the State of New York, Respondent, v. Terrence BOURNE, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

July 21, 1988.

Ralph Fabrizio, of counsel (Carol Gette with him on the brief; Robert M. Morgenthau, New York City, attorney) for respondent.

Andrea Hirsch, of counsel (Philip L. Weinstein, New York City, attorney), for defendant-appellant.

Before MURPHY, P.J., and SANDLER, CARRO, ASCH and MILONAS, JJ.

CARRO, Justice.

Express waivers, the "intentional relinquishment or abandonment of a known right" ( Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461), are ordinarily given effect if "knowingly and voluntarily made" ( Barker v. Wingo, 407 U.S. 514, 529, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101) and not in violation of public policy ( Hadden v. Consolidated Edison Co. of New York, 45 N.Y.2d 466, 469, 410 N.Y.S.2d 274, 382 N.E.2d 1136). Without a doubt, defendant asserts cogent arguments, which deserve our careful attention, as to why this court should scrutinize more closely the growing prosecutorial practice of exacting as a condition to a negotiated plea the waiver of the right to appeal. See People v. Ventura, 139 A.D.2d 196, 202, 531 N.Y.S.2d 526. This case, however, presents an altogether independent issue, which though not addressed by the parties on this appeal, once determined will resolve the question of the reviewability of defendant's sentence despite his express waiver of the right to appeal. That issue is whether a waiver of the right to appeal a judgment operates not only as a waiver of our "law" jurisdiction but also of our interest of justice jurisdiction to review and modify sentences in our discretion.

We now hold that a waiver of the right to appeal a criminal conviction, entered by a defendant as a condition to a negotiated plea, does not bar that defendant from invoking the unique, historically recognized, "constitutionalized" power ( People v. Pollenz, 67 N.Y.2d 264, 268, 502 N.Y.S.2d 417, 493 N.E.2d 541) of this court to review his sentence as a matter of discretion in the interest of justice. In so holding, we are mindful of the fact that recently a different panel of this very court and earlier decisions of our fellow Departments have upheld such waivers and dismissed appeals seeking appellate review of sentences as excessive. See People v. Cooks, 135 A.D.2d 455, 522 N.Y.S.2d 446, 447; People v. Harvey, 124 A.D.2d 943, 515 N.Y.S.2d 320; People v. Davison, 108 A.D.2d 820, 485 N.Y.S.2d 296. Reconsideration of these decisions is warranted, indeed compelled, by the fact that it does not appear that the effect of these waivers on our sentence review powers has ever been analyzed or even addressed. We take this opportunity to do so now. But first, a brief review of the facts of this case is in order.

On April 26, 1985, defendant pleaded guilty to manslaughter in the first degree to cover an indictment charging him with murder in the second degree. A condition of the plea, which carried a promise of an eight and one-third to twenty-five-year sentence, was that defendant waive his right to appeal the judgment. At the allocution, when the court inquired whether defendant was prepared to waive his right to appeal, defendant responded that he was not. However, after conferring with counsel, defendant then admitted his intent to waive his right to appeal. Defendant was sentenced in accordance with the terms of the negotiated plea. Defendant now seeks review of his sentence as excessive, thereby invoking the interest of justice jurisdiction of this court.

This interest of justice jurisdiction is exclusive to criminal appeals. Thus, while our jurisdiction in civil cases is itself generous in that it permits appellate review of most nonfinal and final orders and judgments pertaining to pre-trial and trial proceedings, a reversal or modification must be grounded upon the law, (i.e. preserved errors), the facts, or a combination of both. CPLR 5501(a), (c). In criminal cases, on the other hand, while interim appeals are not, except under extraordinary circumstances, permitted (CPL §§ 450.10, 450.20; Matter of State of New York v. King, 36 N.Y.2d 59, 64, 364 N.Y.S.2d 879, 324 N.E.2d 351), our jurisdiction is nevertheless extremely liberal in that we may reverse or modify, upon the law, the facts or as a matter of discretion in the interest of justice, or a combination of the above. CPL § 470.15(3). Even more extraordinary is our explicitly authoriz power, when reviewing a sentence in our discretion, not only to adjudge it to be excessive, but to ourselves impose some legally authorized lesser sentence. CPL §§ 470.15(6)(b), 470.20(6).

A brief historical review of this power illuminates its invulnerability to the attack presented in this case. The Appellate Division of the Supreme Court of New York came into existence in 1894, (N.Y. Const. of 1894, Art. VI, §§ 1, 2), for the express purpose of exercising appellate jurisdiction over the Trial and Special Terms of the Supreme Court and any legislatively established inferior courts. Waldo v. Schmidt, 200 N.Y. 199, 202, 93 N.E. 477. ¹ Soon after its creation and before it was specifically given any express statutory grant of jurisdictional power to reduce sentences, the Appellate Division exercised, as inherently given, the power to review the claimed harshness of sentences in the interest of justice. People v. Thompson, 60 N.Y.2d 513, 520, 470 N.Y.S.2d 551, 458 N.E.2d 1228, citing People v. Miles, 173 App.Div. 179, 158 N.Y.S. 819.

In People v. Miles, supra, the Appellate Division, Third Department, reasoned that because sentencing was a naturally vested power of the Supreme Court, it was thereby inherently subject to review under the general appellate powers of the Appellate Division. Furthermore, the court said, "any determination of a trial judge or justice which is unjust in its relation to the crime of which the defendant stands convicted is within the power of the Supreme Court [Appellate Division] to correct." Id. at 185, 158 N.Y.S. 819. This inherent power to review and correct was subsequently expressly codified in Section 543 of the Code of Criminal Procedure, and later in 1971, when the Legislature adopted the current Criminal Procedure Law, that power to review and reduce sentences in the interest of justice was continued in Sections 470.15(6)(b) and 470.20(6). Finally, this power, originally recognized as inherent, was deemed "constitutionalized" by New York Constitution, Article VI, § 4(k), which grants to the Appellate Divisions all the jurisdiction possessed by them by statute on the effective date of that Article (September 1, 1962), including the jurisdiction given them by CPL §§ 470.15, 470.20. People v. Pollenz, supra, 67 N.Y.2d at 268, 502 N.Y.S.2d 417, 493 N.E.2d 541. The Pollenz court determined that this jurisdiction may not be legislatively limited or conditioned by law. Id.

Neither is this court limited or restricted in the same way the trial court is when it finds a negotiated sentence to be unfair. In People v. Thompson, 60 N.Y.2d 513, 470 N.Y.S.2d 551, 458 N.E.2d 1228, the court, after reviewing the history of and noting the expansiveness and uniqueness of our sentence review powers, held that the requirement established in People v. Farrar, 52 N.Y.2d 302, 437 N.Y.S.2d 961, 419 N.E.2d 864, that a trial court must afford the prosecutor an opportunity to withdraw consent to a plea when it finds a negotiated sentence to be excessive, does not apply to the Appellate Division's power to reduce a sentence in the interest of justice. Id. 60 N.Y.2d esp. 519-521, 470 N.Y.S.2d 551, 458 N.E.2d 1228. The court based its decision on the fact that the statute at issue in Farrar (CPL § 220.10(3), (4)), requiring the consent of the People and the trial court in negotiated pleas, was simply inapplicable to the Appellate Division, which upon a distinctively different and independent statutory basis has the power to review and reduce a sentence in its discretion and in the interest of justice, irrespective of the bargained for terms of the plea. Thompson, at 519, 470 N.Y.S.2d 551, 458 N.E.2d 1228.

The court summarized its holding, using words that are equally dispositive of the issue herein, as follows:

In sum, our decision in this case, as in Farrar, is dictated by the applicable statutes. The Legislature has provided that the prosecutor's consent to a plea is required at the trial court level which necessarily permits the prosecutor to impose lawful conditions which the trial court cannot disregard. The Legislature, however, has not seen fit to impose similar restrictions on the Appellate Division's power to reduce a sentence in the interests of justice and impose a lesser one if a majority of the court concludes that the sentence imposed was unduly harsh under the circumstances. (emphasis added).

Thompson, at 521, 470 N.Y.S.2d 551, 458 N.E.2d 1228.

The import of these words to the facts herein, where the waiver of an appeal was a condition to the plea, cannot be mistaken. We are entitled to conclude from the Thompson holding, as well as from the constitutionally protected nature of our power and duty to review sentences in the interest of justice, that even assuming the voluntary and knowing nature of defendant's waiver, the fact of the waiver does not prohibit the defendant from invoking our interest of justice jurisdictio nor does it restrict this court from disregarding the waiver and as a matter of discretion reviewing the alleged excessiveness of the sentence.

Our exclusively granted interest of justice jurisdiction to review and modify even lawfully imposed sentences exists precisely to correct unjust sentences, and this review defendant cannot waive. There can be no doubt that when an unjust sentence has been imposed, something in the process of administering criminal justice has gone awry. Equally irrefutable is the...