People v. Corti

• Decision Date: 16 August 1982
• Citation: 88 A.D.2d 345,453 N.Y.S.2d 439
• Parties: The PEOPLE, etc., Respondent, v. Dennis Gerald CORTI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 439

453 N.Y.S.2d 439

88 A.D.2d 345

The PEOPLE, etc., Respondent, v.Dennis Gerald CORTI, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 16, 1982.

Arthur J. Selkin, Yorktown Heights, pro se.

John R. King, Dist. Atty., Poughkeepsie (Bridget R. Rahilly, Asst. Dist. Atty., Poughkeepsie, of counsel), for respondent.

Before DAMIANI, J. P., and LAZER, MANGANO and GIBBONS, JJ.

MANGANO, Justice.

The primary issue addressed on this appeal is whether, in a criminal matter, issues raised in a pretrial motion to suppress evidence under CPL 710.20 are waived and appellate review forfeited, when a defendant, without expressly waiving the final disposition of his suppression motion, enters a plea of guilty while that motion remained pending and undecided.We answer in the affirmative and hold that an express waiver is not required.

Defendant was accused of having killed his father by shooting, stabbing and striking him to death, and, by a Dutchess County indictment, dated November 26, 1974, was charged with murder in the second degree.

By notice of motion dated December 11, 1974, defendant moved, pretrial, to suppress certain confessions and admissions he had made to law enforcement officials.The record contains no papers in opposition to this motion nor any decision or order disposing of the motion in whole or in part.

On April 21, 1975, defendant, in open court, moved to withdraw his previously entered plea of not guilty and to enter a plea of guilty to the crime of murder in the second degree, as charged in the indictment.After advising defendant of his constitutional rights and their waiver as effected by his guilty plea, and after inquiring into the voluntary nature of his plea and defendant's understanding that it would "end * * * the matter as far as a trial goes", the County Court elicited from defendant that he had consulted with his attorney before deciding to plead guilty, that he had no further questions for his attorney and that he was satisfied with his attorney's services.The court then asked defendant to recite, in his own words, the facts of the instant offense.

Defendant stated that, while visiting with his father, he had taken some barbiturates "in order to get high".His father had witnessed this and gotten very upset.They argued.Defendant's father hit him with a club and then called the police.When the police arrived, defendant was hiding on a neighbor's property.When the police left, he returned to his father's house and his father bandaged his wounds.The following morning, they argued again.Defendant, who had taken more barbiturates, warned his father not to call the police, and then disconnected the telephone.With a gun in his pocket, he went after his father and finally caught up with him near the garage.There, his father hit him with a stick and ran to his truck to call the police by radio.Defendant then broke the back windshield of the truck with a hammer and cautioned his father not to call the police.His father came out of the truck holding something and defendant, with his gun in hand, cocked the trigger, made a motion to run, and then fired several times, shooting his father.Defendant admitted to the court: "I had stopped momentarily and I realized what I had done and I was under the influence of drugs still, and I realized what I had done then."He also admitted: "I shot my father several times and I stabbed him several times to make sure the body was dead".

The guilty plea was accepted.

On May 30, 1975, defendant was sentenced to an indeterminate term of imprisonment of 15 years to life, the minimum available sentence authorized by law (Penal Law, §§ 60.05,70.00).In imposing sentence, the County Court indicated that it had read the minutes of the guilty plea and the probation report, and had reviewed defendant's criminal history, which was not insubstantial.

It should be noted that defendant never challenged his guilty plea in the County Court by motion to vacate or otherwise.

Defendant now appeals his judgment of conviction and raises the issues that certain statements to law enforcement officials were obtained in violation of his right to counsel and should have been suppressed.Since he pleaded guilty pretrial and his suppression motion was never heard or finally decided, there is neither a trial record nor a record on the motion, nor, for that matter, any factual record on this subject.Appellate review is therefore precluded.(SeePeople v. Charleston, 54 N.Y.2d 622, 442 N.Y.S.2d 493, 425 N.E.2d 881;People v. Johnson, 51 N.Y.2d 986, 435 N.Y.S.2d 713, 416 N.E.2d 1048;People v. De Mauro, 48 N.Y.2d 892, 424 N.Y.S.2d 884, 400 N.E.2d 1336.)Beyond this, however, we hold that defendant, by pleading guilty prior to a decision on his suppression motion, waived final determination of the motion, and thus failed to preserve any suppression issue for appellate review.We further hold that the plea of guilty itself, without more, created this waiver and effected the forfeiture of appellate review.

It is well settled that a motion to suppress evidence under CPL article 710 is the exclusive remedy available to criminal defendants for challenging the admissibility of illegally obtained evidence (CPL 710.70, subd. 3;People v. Esajerre, 35 N.Y.2d 463, 363 N.Y.S.2d 931, 323 N.E.2d 175).As such, it need not be employed by every criminal defendant in every criminal case, and use of the remedy can be waived simply by failing to use it (CPL 710.70, subd. 3).It follows from this that if the right to seek suppression can be waived by a failure to take affirmative action in the first instance, then a defendant who has made such a motion may also elect to waive the final step in the motion process, namely, a judicial determination on the merits.(People v. Esajerre, supra, p. 466, 363 N.Y.S.2d 931, 323 N.E.2d 175.)Obviously, this waiver may be expressed on the record, but the question is whether it must be, and if a guilty plea, without more, can effect such a waiver.In People v. Williams, 73 A.D.2d 1019, 424 N.Y.S.2d 757, the Third Department held that express waiver is necessary.

"While it is true that a defendant can waive his right to a determination of his suppression motion upon entering a plea of guilty (People v. Esajerre, 35 N.Y.2d 463People v. Conrad, 54 A.D.2d 777 ), such a waiver should not be presumed in the absence of specific language indicating this to be the defendant's intent."(People v. Williams, supra, 73 A.D.2d p. 1020, 424 N.Y.S.2d 757, emphasis added.)

This court in People v. Scott, 83 A.D.2d 567, 441 N.Y.S.2d 8, cited Williams with approval and held that a defendant who had pleaded guilty while his suppression motion was pending and had not expressly waived its final determination was entitled to such a determination.

By today's decision, we choose not to follow the holding of the Third Department in People v. Williams, 73 A.D.2d 1019, 424 N.Y.S.2d 757, supra, and, to the extent that People v. Scott, 83 A.D.2d 567, 441 N.Y.S.2d 8, supra is in accord with Williams, it is overruled.

A guilty plea waives all nonjurisdictional defects in a criminal proceeding.(SeePeople v. Thomas, 74 A.D.2d 317, 428 N.Y.S.2d 20, affd.53 N.Y.2d 338, 441 N.Y.S.2d 650, 424 N.E.2d 537;People v. Lieberman, 79 A.D.2d 175, 178-179, 436 N.Y.S.2d 12People v. Palmer, 63 A.D.2d 1090, 1091, 406 N.Y.S.2d 171;People v. Meachem, 50 A.D.2d 953, 375 N.Y.S.2d 678;People v. Smith, 41 A.D.2d 893, 342 N.Y.S.2d 513;see, also, People v. Williams, 43 A.D.2d 884, 351 N.Y.S.2d 761, affd.36 N.Y.2d 829, 370 N.Y.S.2d 904, 331 N.E.2d 684;People v. Giuliano, 52 A.D.2d 240, 383 N.Y.S.2d 878;People v. Vina, 47 A.D.2d 895, 367 N.Y.S.2d 268.)For that reason, it is said that there are "rare instances in which the right to appeal survives a plea of guilty".(People v. Andriani, 67 A.D.2d 20, 24-25, 414 N.Y.S.2d 159.)"In the absence of a constitutional claim which may in some instance survive a plea of guilty (Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195), the right to appeal following a guilty plea is governed by statute(see, for example, CPL 710.70, subd. 2;CPL 450.30)."(People v. Siciliano, 52 A.D.2d 408, 410, 384 N.Y.S.2d 994.)In fact, generally, the right to appeal in criminal cases is strictly statutory (People v. Gilliam, 65 A.D.2d 533, 409 N.Y.S.2d 400), but especially so after guilty pleas, where the right is severely limited in order to insure the finality of the guilty plea, designed, as it is, to prevent regenerated litigation (People v. Siciliano, supra, 52 A.D.2d p. 410, 384 N.Y.S.2d 994), and to signal the end of the criminal action, and not the beginning of an appellate process to undo the plea.(Cf.People v. Giuliano, supra, 52 A.D.2d p. 247, 383 N.Y.S.2d 878.)

Any issue raised by a pretrial motion under CPL article 710 is a nonjurisdictional issue, since it is strictly concerned with the admissibility of certain evidence at the criminal trial (CPL 710.20).Such issues, therefore, would generally be waived by a guilty plea and not subject to appellate review, but for subdivision 2 of CPL 710.70, to wit:

"An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty."(Emphasis added.)

The statute, therefore, grants a defendant who has pleaded guilty a limited right to appeal.He may obtain appellate review of a nonjurisdictional issue, i.e., the admissibility of certain evidence at the criminal trial, when, and only when, he has obtained an order finally denying a motion to suppress evidence.Otherwise, it would appear that the general rule would apply, viz., that any defense claim as to the admissibility of evidence (CPL 710.20) is waived by the plea of guilty.Therefore, since a defendant who has not obtained an order denying suppression does not come within the provisions of ...