People v. Callahan

• Decision Date: 27 October 1992
• Citation: 590 N.Y.S.2d 46,80 N.Y.2d 273,604 N.E.2d 108
• Parties: , 604 N.E.2d 108 The PEOPLE of the State of New York, Respondent, v. Patrick James CALLAHAN, Appellant. The PEOPLE of the State of New York, Respondent, v. Gregory SUTTON, Appellant. The PEOPLE of the State of New York, Respondent, v. Richard DeSIMONE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 46

590 N.Y.S.2d 46

80 N.Y.2d 273, 604 N.E.2d 108

The PEOPLE of the State of New York, Respondent, v. Patrick James CALLAHAN, Appellant.

The PEOPLE of the State of New York, Respondent, v. Gregory SUTTON, Appellant.

The PEOPLE of the State of New York, Respondent, v. Richard DeSIMONE, Appellant.

Court of Appeals of New York.

Oct. 27, 1992.

[80 N.Y.2d 275] [604 N.E.2d 110] Thomas D. Jaycox, Matthew Muraskin and Kent V. Moston, Hempstead, for appellant in the first and third above-entitled action.

[80 N.Y.2d 276] Denis Dillon, Dist. Atty., Mineola (Lisa J. Becker and Peter A. Weinstein, of counsel), for respondent in the first above-entitled action.

Jonathan Garelick, and Philip L. Weinstein, New York City, for appellant in the second above-entitled action.

Charles J. Hynes, Dist. Atty., Brooklyn (Camille O'Hara Gillespie and Jay M. Cohen, of counsel), for respondent in the second above-entitled action.

[80 N.Y.2d 277] Denis Dillon, Dist. Atty., Mineola (Judith R. Sternberg and Peter A. Weinstein, of counsel), for respondent in the third above-entitled action.

OPINION OF THE COURT

TITONE, Judge.

In People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022, we held that the right to appeal may be waived as a condition of a sentence or plea bargain, provided that the waiver was voluntarily made and no important public policies or societal interests are implicated. These three appeals require us to consider the proper application of that holding to three different factual circumstances.

People v. Callahan

Defendant was charged with burglary in the third degree and criminal mischief in the second degree arising out of his unlawful entry into a bank through a side window. As a result of a plea bargain, defendant was permitted to plead guilty to attempted third degree burglary, provided that he waived his right to appeal and paid restitution for the damage done to the bank. During the plea colloquy, the court advised defendant that by pleading guilty he was waiving his right to appeal as well as a number of other rights.

After defendant's guilty plea was accepted, the Probation Department prepared a presentence report which stated that restitution in the amount of $1,564.76 was indicated because the bank had sustained damage to its alarm system, window and vaults in that amount. Based on this report and the fact that the amount that had been discussed at the time of the plea was even higher, the court ruled that the total amount of restitution should be $1,643 ($1,564.76 plus a 5% surcharge).

Following imposition of sentence, defendant took an appeal, arguing that the restitution portion of his sentence was illegal because, in failing to conduct an independent inquiry, the court had improperly delegated its sentencing responsibilities to the Probation Department (see, People v. Fuller, 57 N.Y.2d 152, 156-159, 455 N.Y.S.2d 253, 441 N.E.2d 563). Defendant also argued that the court erred in imposing a surcharge without first ascertaining defendant's ability to pay. The Appellate Division subsequently dismissed the appeal, 170 A.D.2d 690, 566 N.Y.S.2d 811, citing People v. Seaberg (supra) as its sole authority.

People v. Sutton

On March 18, 1987, defendant was arrested on a number of drug-related charges. He subsequently moved for a dismissal on the ground that his statutory and constitutional rights to a speedy trial had been violated by the People's delay of some 13 months in responding to his omnibus motion. The court denied the motion and, some 2 1/2 months later, defendant pleaded guilty to second degree criminal sale of a controlled substance in full satisfaction of the indictment. As a condition to their agreement to this plea, the People insisted that defendant waive "any and all rights to appeal." Defendant acknowledged his awareness of this condition during the plea allocution. He was subsequently sentenced in accordance with the terms of the plea bargain.

Defendant attempted to obtain review of the trial court's unfavorable speedy trial determination in the Appellate Division, but that court dismissed the appeal on the ground that defendant had waived his appellate rights as part of his plea bargain. 175 A.D.2d 272, 573 N.Y.S.2d 915. The Court rejected defendant's specific argument that his waiver did not foreclose appellate review of his speedy trial claim. Citing People v. Rodriguez, 50 N.Y.2d 553, 557, 429 N.Y.S.2d 631, 407 N.E.2d 475, the Court stated its view that even constitutional speedy trial claims are waivable and that a waiver such as defendant's should be enforced unless "the record on appeal demonstrates that it was made under duress by a defendant whose only alternative was to face a trial whose fundamental fairness was compromised as a result of the delay" (175 A.D.2d 272, 273, 573 N.Y.S.2d 915, citing People v. Blakley, 34 N.Y.2d 311, 357 N.Y.S.2d 459, 313 N.E.2d 763; People v. White, 32 N.Y.2d 393, 345 N.Y.S.2d 513, 298 N.E.2d 659).

People v. DeSimone

After plea negotiations, it was agreed that defendant, who had been indicted for various drug-related offenses, would be permitted to plead guilty to one count of fifth degree criminal sale of a controlled substance to satisfy all of the charges against him. At the plea proceeding that ensued, the People informed the court that defendant had signed a written waiver of his right to appeal the sentence as a condition of his plea. The court, however, did not mention the written waiver during the plea allocution. At the close of the allocution, defendant entered his guilty plea and the court sentenced him to an indeterminate term of 1 2/3 to 5 years' imprisonment.

Defendant subsequently appealed to the Appellate Division, arguing that his sentence should be reduced in light of the history of the case. He also argued that his written waiver should be disregarded because the trial court had conducted no inquiry to ascertain whether it had been made knowingly and voluntarily. Rejecting this argument, the Appellate Division dismissed the appeal in a one-sentence opinion that relied exclusively on People v. Seaberg (supra). 179 A.D.2d 673, 579 N.Y.S.2d 896.

I.

In People v. Seaberg (supra), we rejected the argument that, as a matter of judicial policy, the appellate courts should decline to recognize bargained-for waivers of the right to appeal. We reviewed the many sound reasons for giving effect to such waivers and noted that, in most instances, they do not implicate "society's interest in the integrity of criminal process" (74 N.Y.2d, at 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022, supra). Accordingly, we held, a defendant may ordinarily waive the right to appeal as part of a sentence or plea bargain, and, in most situations, the appellate courts should honor such waivers.

Our analysis in Seaberg, however, did not exclude the possibility that, in certain specific circumstances, a defendant's appellate claim could be reviewed despite a bargained-for waiver of the right to appeal. To the contrary, the Seaberg opinion set forth several categories of appellate claims that may not be waived because of a larger societal interest in their correct resolution. These include the constitutionally protected right to a speedy trial (see, People v. Blakley, 34 N.Y.2d 311, 314-315, 357 N.Y.S.2d 459, 313 N.E.2d 763, supra), challenges to the legality of court-imposed sentences (see, People v. Francabandera, 33 N.Y.2d 429, 434, n. 2, 354 N.Y.S.2d 609, 310 N.E.2d 292), and questions as to the defendant's competency to stand trial (see, People v. Armlin, 37 N.Y.2d 167, 172, 371 N.Y.S.2d 691, 332 N.E.2d 870).

Additionally, the Seaberg opinion makes clear that a waiver of the right to appeal will not be enforced unless it was knowingly, intelligently and voluntarily made (74 N.Y.2d, at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022, supra). The determination as to whether a particular waiver satisfies these requirements must be made, in the first instance, by the trial court, which is in the best position to assess all of the relevant factors, including the nature and terms of the agreement, the reasonableness of the bargain, and the age and experience of the accused (id.; see also, People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170). However, as is true for any other condition attached to a sentence or plea bargain, the appellate courts also have the responsibility to oversee the process and to review the record to ensure that the defendant's waiver of the right to appeal reflects a knowing and voluntary choice (id.; see also, People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5). To facilitate appellate review, the Seaberg opinion urges the trial courts to ensure that the terms and conditions of the agreement, as well as the accused's understanding of those terms and conditions, are made apparent on the face of the record (id.). With these principles in mind, we turn now to the specific problems presented by these three appeals.

II.

In People v. Callahan, the defendant attempted to avoid the effect of his waiver of the right to appeal by invoking the exception we have recognized for challenges to the legality of the sentence (see, People v. Seaberg, supra, 74 N.Y.2d at 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022, citing People v. Francabandera, supra). However, when the label defendant assigned to his appellate claim is disregarded and the actual gist of the claim is examined, it is apparent that his challenge is addressed not to the legality of the sentence on its face, or even to the power of the court to impose the restitution sentence it chose. Rather, defendant's appellate claim was addressed merely to the adequacy of the procedures the court used to arrive at its sentencing determination, specifically its purported overreliance on the presentencing report's restitution recommendation and its failure to conduct a special inquiry into defendant's ability to pay a surcharge (cf., People v. Fuller, 57 N.Y.2d 152, 455 N.Y.S.2d...