People v. Jandrew

• Decision Date: 03 May 1984
• Citation: 475 N.Y.S.2d 906,101 A.D.2d 90
• Parties: The PEOPLE of the State of New York, Respondent, v. Ernest JANDREW, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 906

475 N.Y.S.2d 906

101 A.D.2d 90

The PEOPLE of the State of New York, Respondent, v. Ernest JANDREW, Appellant.

Supreme Court, Appellate Division Third Department.

May 3, 1984.

Peter B. Lekki, Canton, for appellant.

Charles A. Gardner, Dist. Atty., Canton (Robert J. Ayling, Gouverneur, of counsel), for respondent.

Before MAHONEY, P.J., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.

MAIN, Justice.

Defendant pleaded guilty to a reduced charge of attempted criminal possession of a controlled substance in the fifth degree in full satisfaction of his indictment and admitted that he had violated his parole. As part of his plea agreement, defendant agreed to waive his right to appeal. Defendant now claims, among other contentions, that his general waiver of the right to appeal did not encompass his right to appeal from the denial of his suppression motion (CPL 710.70, subd. 2) and, therefore, we should consider the merits of his suppression motion and other claims. We disagree and conclude that defendant's general waiver of his right to appeal as part of his negotiated plea agreement was knowing, voluntary and intelligent and, therefore, included a waiver of his right to appeal from the denial of his suppression motion.

As part of a plea agreement, a defendant may specifically waive his right to appeal from the denial of a suppression motion (see, e.g., People v. Williams, 36 N.Y.2d 829, 370 N.Y.S.2d 904, 331 N.E.2d 684, cert. den. 423 U.S. 873, 96 S.Ct. 141, 46 L.Ed.2d 104; People v. Di Orio, 99 A.D.2d 593, 471 N.Y.S.2d 701; People v. Santana, 99 A.D.2d 586, 471 N.Y.S.2d 414). In this case, defendant was not specifically apprised by County Court that in waiving his right to appeal, he was waiving appellate review of the denial of his suppression motion. Nonetheless, we can articulate no logical reason why defendant's general waiver of the right to appeal, it appearing from the surrounding circumstances that defendant comprehended the import of his waiver, should not include a waiver of the right to appeal from the denial of his suppression motion. In waiving the right to appeal, defendant must have been giving up something, otherwise the waiver would be meaningless. The right to appeal following a guilty plea is limited and, except for certain constitutional rights which may survive the plea, is governed by statute (see People v. Siciliano, 52 A.D.2d 408, 410, 384 N.Y.S.2d 994, affd. 40 N.Y.2d 996, 391 N.Y.S.2d 106, 359 N.E.2d 700, app. dsmd. 430 U.S. 980, 97 S.Ct. 1674, 52 L.Ed.2d 374). For example, a defendant may, following a guilty plea, appeal from the sentence (see CPL 450.30; People v. Burke, 41 A.D.2d 874, 875, 342 N.Y.S.2d 868) or from the denial of a suppression motion (see CPL 710.70, subd. 2). Thus, for the waiver of the right to appeal to be meaningful, it is logical that a defendant who knowingly, voluntarily and intelligently waives the right to appeal following a guilty plea gives up at least those statutory rights ¹ to appellate review which survive the guilty plea, as enumerated above. Accordingly, we conclude that a defendant's knowing, voluntary and intelligent general waiver of the right to appeal following a plea of guilty includes a waiver of the right to appeal from the denial of a suppression motion.

In reaching this conclusion, we are further persuaded by the fact that a defendant who pleads guilty waives certain constitutional rights, even though those constitutional rights waived need not have been specifically enumerated by the court during the plea hearing, so long as it appears from the surrounding circumstances that the defendant is acting knowingly, voluntarily and intelligently (see, e.g., People v. Harris, 61 N.Y.2d 9, 16-19, 471 N.Y.S.2d 61, 459 N.E.2d 170; People v. Brush, 99 A.D.2d 564, 471 N.Y.S.2d 389). If those constitutional rights which are waived by a guilty plea need not be specifically enumerated during the plea hearing, then, by analogy, we do not deem it necessary for statutory rights to appellate review to be specifically enumerated at the time of the waiver of the right to appeal, so long as it appears from the relevant surrounding circumstances that such waiver is knowing, voluntary and intelligent (see People v. Cox, 71 A.D.2d 798, 419 N.Y.S.2d 345).

Our review of the record in this case leads us to conclude that defendant's waiver was knowing, voluntary and intelligent. Although it became clear during the plea colloquy between defendant and County Court that defendant's counsel had not discussed the waiver of the right to appeal with defendant, the record indicates that, thereafter, there were at least three occasions when defendant, who had previous contact with the criminal justice system, discussed the waiver of the right to appeal: first, during the plea hearing after it became apparent that defense counsel had not raised this matter with defendant and counsel then did so; second, after the guilty plea was taken when defendant signed a written waiver of the right to appeal, which is also signed by defense counsel, who was instructed by the court to discuss the waiver with defendant; and third, during sentencing when County Court again brought the waiver of the right to appeal to defendant's attention. Furthermore, it is significant that defendant's attorney undertook substantial pretrial procedures and, in fact, was able to have one count of the indictment against defendant dismissed. Such representation indicates that defendant was provided effective assistance of counsel and, in conjunction with the occasions when defendant discussed his waiver of the right to appeal with his counsel, that defendant's waiver was with the advice of competent counsel and knowing, voluntary and intelligent (see People v. Francis, 38 N.Y.2d 150, 154, 379 N.Y.S.2d 21, 341 N.E.2d 540). Accordingly, in waiving his right to appeal, defendant waived his right to appeal from the denial of his suppression motion.

Our decision herein is entirely consistent with our prior decision in People v. Williams, 73 A.D.2d 1019, 424 N.Y.S.2d 757. In Williams, we held that a guilty plea was insufficient to waive appellate review of a suppression motion which was pending and undecided at the time of the guilty plea absent specific language indicating the defendant's intent to waive his right to a determination of the suppression motion (id. at 1020, 424 N.Y.S.2d 757). In this case, we have more than a guilty plea without an indication of defendant's intentions. Indeed, we have a guilty plea and an explicit waiver of the right to appeal which, as discussed above, must include, in order to be meaningful, the waiver of those few statutory rights which usually survive a guilty plea. Thus, in this case there is a specific indication, by way of the explicit waiver of the right to appeal, of defendant's intentions, which was lacking in Williams. ²

Inasmuch as there has been a change of administration in the St. Lawrence County District Attorney's office since January, 1984, we deem it unnecessary to address defendant's contention that the District Attorney's practice of conditioning plea agreements on the waiver by a defendant of his right to appeal is unconscionable. We do note that although the propriety of a District Attorney conditioning a plea agreement on a defendant's waiver of his right to appeal may not be free from controversy (see, e.g., Validity and Effect of Criminal Defendant's Express Waiver of Right to Appeal as Part of Negotiated Plea Agreement, Ann, 89 A.L.R.3d 864), there are sufficient safeguards to such practice to ensure that abuses are avoided. For example, a court can reject a plea agreement which includes a waiver of the right to appeal if the waiver appears to be other than knowing, voluntary and intelligent (see People v. Selikoff, 35 N.Y.2d 227, 235, 360 N.Y.S.2d 623, 318 N.E.2d 784, cert. den. 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822), or a defendant can seek a postjudgment hearing on whether his waiver, and corresponding plea, was the result of duress, misrepresentation or fraud by the court or prosecutor (see CPL 440.10, subd. 1, par. [b]; 440.30) or a writ of habeas corpus for the same reasons (see Bellacosa, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL 440.10, p. 320). Our disposition renders it unnecessary to consider defendant's other claims.

The judgment should be affirmed.

Judgment affirmed.

YESAWICH,...