People v. Burk

• Decision Date: 06 July 1992
• Citation: 586 N.Y.S.2d 140,181 A.D.2d 74
• Parties: The PEOPLE, etc., Respondent, v. William BURK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 140

586 N.Y.S.2d 140

181 A.D.2d 74

The PEOPLE, etc., Respondent, v. William BURK, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 6, 1992.

Philip L. Weinstein, New York City (David P. Greenberg, of counsel; Judith Stern, on the brief), for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Andrew Zwerling, of counsel; Nora A. Colangelo, on the brief), for respondent.

Before HARWOOD, J.P., and BALLETTA, ROSENBLATT and COPERTINO, JJ.

BALLETTA, Justice.

In People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022, the Court of Appeals held that a criminal defendant's right to appeal may be waived as a condition of a sentence or negotiated plea, provided that the waiver was voluntary, knowing, and intelligent. In the case at bar, the defendant negotiated a plea agreement which included the promise of a specific sentence and an agreement by the defendant to waive his right to appeal. In urging this court to undertake a review of the purported excessiveness of the sentence, the defendant contends that his waiver did not encompass the agreed-upon sentence. We disagree. Where the promise of a particular sentence is part and parcel of the negotiated plea agreement, then a defendant's generalized waiver of his right to appeal will necessarily include the right to challenge the sentence.

I

The defendant herein was charged under Queens County Indictment No. 3087/88 with two counts of murder in the second degree, one count of manslaughter in the first degree and one count of criminal possession of a weapon in the fourth degree. The charges arose out of the May 7, 1988 stabbing death of Ross Lambert. Following a Huntley hearing, the court denied that branch of the defendant's omnibus motion which was to suppress his confession. Subsequently, the defendant's attorney made an application on behalf of the defendant to enter a plea of guilty to the crime of manslaughter in the first degree in full satisfaction of the indictment:

"[DEFENSE COUNSEL]: This is an application made on behalf of the Defendant before the Court under indictment 3087 of '88 to withdraw his previous plea of not guilty heretofore entered and enter a plea of guilty to the third count of the indictment, manslaughter in the first degree, with the understanding that the District Attorney move to dismiss the first two counts.

"That is taken in consideration of the conversation had with your Honor and negotiations had with the District Attorney. That defendant will be sentenced to a sentence of [an] indeterminate period of eight and a third to sixteen and two-thirds [years].

"[THE PROSECUTOR]: And with a waiver of any rights he may have to appeal the plea or the hearings held in this matter.

"THE COURT: I normally insist on that on the price of my plea agreement. Now, Mr. Burk, have you understood what [defense counsel] has just told me?

"THE DEFENDANT: Yes.

"THE COURT: Any questions in your mind about it?

"THE DEFENDANT: No, sir.

"THE COURT: Let me just tell you, the consequences of my allowing you to change your plea from not guilty to guilty to manslaughter in the first degree in satisfaction of all four counts in indictment 3087 of '88 means that you will never have a trial with respect to any of those issues, do you understand?

"THE DEFENDANT: Yes, sir.

"THE COURT: It means that you are waiving your right to a number of things. One of them is to have a jury trial with respect to these issues. The second is that you are waiving your right to any kind of appeal [of] issues that might have existed in this case from the time of your arrest up to the present. Do you understand that?

"THE DEFENDANT: Yes.

"THE COURT: You waive your appeal rights?

"THE DEFENDANT: Yes, sir."

The defendant acknowledged that no one had forced or threatened him into pleading guilty. He further acknowledged that he had discussed the case with his family and his attorney and that after these discussions, he had concluded that the plea was in his best interests. The court noted that the defendant was not receiving the possible maximum of 25 years imprisonment and that a predicate felony statement was to be filed at the time of sentencing.

The court then asked the defendant to recount the events of May 7, 1988. The defendant explained that during a fight at the Viscount Hotel near Kennedy Airport, Ross Lambert pulled out a knife which the defendant was able to take away and with which he stabbed Lambert "numerous times". Lambert had no other weapons. The defendant knew that he was causing Lambert serious physical injury when he was stabbing him with the knife.

The court accepted the defendant's plea of guilty with the understanding that the sentence would be an indeterminate term of 8 1/3 to 16 2/3 years imprisonment.

At the time of sentencing, the defendant was adjudicated a second felony offender and sentenced to the promised term. After the court imposed the sentence, the clerk of the court verbally informed the defendant of his right to appeal. When the clerk attempted to hand him a written copy of such notice, the following discussion ensued:

"[DEFENSE COUNSEL]: We waive his notice of appeal.

"[THE PROSECUTOR]: As far as rights to appeal, part of the plea bargain is he waive his rights to appeal.

"[DEFENSE COUNSEL]: I said that".

II

On appeal, the defendant argues that although he responded in the affirmative during the plea hearing when asked whether he understood that he was waiving his "right to any kind of appeal issues that might have existed in this case from the time of [his] arrest up to the present", such a waiver was limited to matters addressed at the plea hearing and did not include a waiver of his right to appeal from his sentence. In addition, he argues that his attorney's statement at sentencing that he was "waiv[ing] his notice of appeal" cannot be interpreted as a knowing and intelligent waiver of his right to appeal his sentence. The defendant relies heavily upon the recent decision of this court in People v. Russell, 168 A.D.2d 580, 562 N.Y.S.2d 796.

The People argue that the sentence was an essential element of the plea bargaining process, that its terms and the defendant's acceptance of those terms were stated on the record during the plea hearing and, therefore, that any issue with respect to that sentence should be within the scope of the defendant's waiver of his right to appeal. The People also argue that this court's holding in People v. Russell (supra ) is apparently contrary to the decisions of the Court of Appeals in People v. Seaberg (supra ) and in People v. Moissett, 76 N.Y.2d 909, 563 N.Y.S.2d 43, 564 N.E.2d 653.

In People v. Russell, supra, 168 A.D.2d at 580-581, 562 N.Y.S.2d 796 this court held that a defendant had not waived his right to challenge the purported excessiveness of his sentence under the following circumstances:

"At a court appearance, during which the defendant and his attorney negotiated the terms relative to the disposition of the case, the defendant told the court that as a condition of his guilty plea, he would waive 'all rights of appeal as to what * * * happened here this morning'. Under the standards enunciated in People v. Seaberg (74 NY2d 1 [543 N.Y.S.2d 968, 541 N.E.2d 1022], we find that the defendant's 'waiver' did not extend to his right to appeal the alleged excessiveness of his sentence, which was imposed some three weeks later".

A more recent case in the Russell vein which is not cited by the defendant but which supports his argument is People v. Crum, 175 A.D.2d 136, 137, 572 N.Y.S.2d 25 wherein this court stated:

"The defendant also contends that he did not waive his right to appeal his sentence on the charge of attempted burglary in the second degree, for which he pleaded guilty, by waiving his right to appeal any issues raised by the plea proceeding. 'A waiver, to be enforceable, must not only be voluntary but also knowing and intelligent' (People v. Seaberg, 74 NY2d 1, 11 [543 N.Y.S.2d 968, 541 N.E.2d 1022]; see, People v. Bray, 154 AD2d 692 . Since the defendant did not expressly waive the right to appeal his sentence on the plea, nor was this issue mentioned at his plea hearing, we find that his right to appeal the sentence was not waived (see, People v. Seaberg, supra [74 N.Y.2d] at 7 [543 N.Y.S.2d 968, 541 N.E.2d 1022]; People v. Thompson, 60 NY2d 513, 520 [470 N.Y.S.2d 551, 458 N.E.2d 1228]".

However, it is now firmly established that a defendant may waive the right to appeal a judgment of conviction or a sentence as a condition of a plea agreement; and that as long as the waiver is voluntary, knowing, and intelligent, and the agreement reasonable and appropriate, the waiver is valid (see, People v. Seaberg, supra, 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022). Furthermore, in the words of the Court of Appeals, "the State's legitimate interest in finality extends to the sentence itself and to holding defendants to bargains they have made. While a defendant always retains the right to challenge the legality of the sentence or the voluntariness of the plea ... the negotiating process serves little purpose if the terms of 'a carefully orchestrated bargain' can subsequently be challenged" (People v. Seaberg, supra, at 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [emphasis added]. A defendant's decision to waive his right of appeal does not interfere with this court's interest of justice jurisdiction as "it is simply a decision not to invoke the court's review power. By pleading guilty a defendant forecloses the appellate court from reviewing the merits of the plea bargain in the interest of justice and there is nothing inherently wrong in a defendant similarly electing to foreclose review of a negotiated sentence" (People v. Seaberg, supra, at 9-10, 543 N.Y.S.2d 968, 541 N.E.2d 1022).

In People v. Smith (142 A.D.2d 195, 535 N.Y.S.2d 732), Justice Bracken, writing on behalf of the court, stated:

"In conclusion, we adhere to our holding that a...