People v. Esajerre

• Decision Date: 20 December 1974
• Citation: 363 N.Y.S.2d 931,323 N.E.2d 175,35 N.Y.2d 463
• Parties: , 323 N.E.2d 175 The PEOPLE of the State of New York, Respondent, v. Humberto ESAJERRE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 931

363 N.Y.S.2d 931

35 N.Y.2d 463, 323 N.E.2d 175

The PEOPLE of the State of New York, Respondent, v. Humberto ESAJERRE, Appellant.

Court of Appeals of New York.

Dec. 20, 1974.

Robert B. Sherman and William E. Hellerstein, New York City, for appellant.

Richard H. Kuh, Dist. Atty. (Lewis R. Friedman and Allen G. Swan, New York City, of counsel), for respondent.

STEVENS, Judge.

The question here is whether, as defendant contends, his waiver of a determination by the court at the conclusion of a suppression hearing is invalid as a matter of law. Defendant urges this is so because the waiver was a precondition to the offer of a reduced plea and, further, defendant was denied an adequate opportunity to weigh the consequences of such waiver.

A brief recital of the facts is in order. Defendant was arrested October 6, 1971 in the hallway of a building by officers responding to a call of a burglary-in-process. A similar alarm had occurred the previous night. At the time he was first observed by the officers, his left hand was in his pocket and his right hand held a paper bag. Defendant, a Chilean national, failed to respond to questions apparently because he was not conversant with the English language.

When patted down, a bulge in his pants pocket proved to be a set of keys. The officers, believing that a gun might be in the paper bag, opened it and found two plastic bags filled with a white crystalline substance, later found to be in excess of two pounds of 70.3% Pure cocaine. One of the keys fitted a nearby apartment where, in plan view, was several thousand dollars in currency. With the aid of a neighbor, defendant was given, in Spanish, the Miranda warnings. The warnings were repeated at the precinct. Ownership of the drugs was admitted and later that evening defendant handed over approximately 17 additional pounds of cocaine.

After indictment, defendant moved to suppress the physical evidence seized. On January 25, 1972, when the hearing was completed, defendant requested and received an adjournment to the following day to prepare a summation. Counsel indicated there had been a discussion of a possible disposition with the District Attorney and with defendant, whose chief concern was that he might not be given parole because he was a foreign national.

On January 26, 1972, the possibility of withdrawal of the motion, acceptance of a guilty plea, and defendant's parole situation were examined. The Assistant District Attorney stated, 'if the defendant were willing to withdraw his motion to suppress and offer to plead guilty to the class B felony of possession', the People would recommend that his plea be accepted and that the maximum possible sentence be imposed. The Assistant District Attorney enumerated some of the possible rights defendant might be giving up by withdrawal of his motion to suppress and he informed the court that the People would not use defendant's foreign nationality as a basis for opposing parole after service of a minimum term of imprisonment.

On January 27, 1972, prior to announcement of the court's decision on the motion, defendant withdrew his motion to suppress and entered a plea of guilty to a class B felony. An indeterminate sentence was imposed with a maximum term of 25 years.

On this appeal defendant does not request a vacatur of the plea as involuntarily entered, but only that this court remand for further proceedings on the suppression motion, asserting, Inter alia, that his waiver of a determination was invalid as a matter of law.

The record negates defendant's contention that he had no adquate opportunity to weigh the waiver's consequences. Not only did defense counsel state that he had had a long discussion with defendant before the summations, but defendant answered in the affirmative when asked by the court if he had 'sufficient time to talk this over with your lawyer'. Moreover, the court conducted a full and lengthy interrogation of defendant through an interpreter, which leaves no doubt that defendant understood the possible consequences of a guilty plea. The court informed counsel 'if the Court grants your application to withdraw the motion to suppress * * * It (the withdrawal) will not be in consideration of anything.' Counsel stated he understood the significance of the statement.

Since defendant moved to suppress before trial, the trial could not be commenced until determination of the motion (CPL 710.40, Consol.Laws, c. 11--A, subd. 3). Thus, the court properly informed defendant that following his decision on the motion, the trial would proceed. In light of the evidence in this case--almost 20 pounds of cocaine--defendant undoubtedly realized that if his motion were denied, he faced the risk of conviction of a class A felony with a mandatory life sentence. Such an awareness was reasonably a major factor inducing the plea. Had the motion been denied, review upon appeal would not have been precluded, notwithstanding the fact that the judgment was entered upon a plea of guilty (CPL 710.70, subd. 2). While the statute provides that a motion to suppress is the exclusive method of challenging the admissibility of physical evidence alleged to have been unlawfully seized, it is not mandatory that a defendant make such motion. He can waive his right to a judicial determination by failing to do so (CPL 710.70, subd. 3). If the right can be waived by a failure to take affirmative action, no good reason is shown why defendant may not elect to waive the final step in the process, namely, a judicial determination on the merits.

Nor is it obligatory that a reduced plea be offered a defendant. A defendant may as a matter of right enter a plea of 'not guilty' to the indictment or, as a matter of right, enter a plea of 'guilty' to the indictment, save as to murder where the possibility exists that the defendant could ultimately be sentenced to death (CPL 220.10, subds. 1, 2, 3 (now subds. 1, 2, 6, par. (c))). Here the indictment charged but one crime, a class A felony, and before defendant could enter a plea of guilty to a lesser crime, it was necessary that the permission of the court and the consent of the People be given (CPL 220.10, subd. 4). Since, in effect, permission to enter a lesser plea is a matter of grace, reasonable conditions may be attached thereto. What is reasonable is generally a question of fact attendant upon the circumstances.

Since the suppression hearing was concluded save for the decision, it was not an unreasonable condition of the offered plea, in the circumstances of this case, that defendant withdraw the motion. Exigencies and circumstances are not ignored in determining what is reasonable. Defendant's fear as to the question of possible parole or deportation were satisfied by the assurance given by the People prior to the withdrawal of his motion. Not all searches are prohibited, only Unreasonable searches, seizures or interceptions (N.Y.Const., art. I, § 12; U.S.Const., 4th Amdt.). Since the defendant could waive his right to attack the search as unreasonable, he could waive the right to an ultimate determination of his claim. There was a knowing and intelligent decision to withdraw the motion. In doing so and entering a guilty plea, defendant...