People v. Seaberg

• Citation: 530 N.Y.S.2d 278,139 A.D.2d 53
• Parties: The PEOPLE, etc., Respondent, v. Alan R. SEABERG, Appellant.
• Decision Date: 11 July 1988
• Court: New York Supreme Court Appellate Division

Page 278

530 N.Y.S.2d 278

139 A.D.2d 53

The PEOPLE, etc., Respondent, v. Alan R. SEABERG, Appellant.

Supreme Court, Appellate Division Second Department.

July 11, 1988.

Scott M. Karson, Melville (E. Thomas Boyle, P.C., of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Glenn Green, of counsel), for respondent.

Before WEINSTEIN, J.P., and EIBER, SULLIVAN and BALLETTA, JJ.

PER CURIAM.

The defendant was indicted on two counts of operating a motor vehicle under the influence of alcohol, as a felony. A jury trial was held in the County Court, Suffolk County (Tisch, J.), commencing on May 7, 1986, and on May 16, 1986, the jury rendered a verdict finding the defendant guilty of operating a motor vehicle with a blood alcohol content of .10 of 1% or more as to count one, and guilty of driving while impaired as to count two.

Sentencing took place on December 4, 1986, having been adjourned a number of times to allow the defendant to qualify for admission to the "TASC" program. During the interval between the verdict in May and the sentencing in December, the trial court, the District Attorney's office and the defense entered into negotiations as a result of which an agreement was reached whereby the District Attorney agreed not to oppose the defendant's entry into the "TASC" program and the defendant agreed to waive his right to appeal from the judgment rendered upon the jury verdict and all adverse rulings at trial. The agreement was subject to the further condition that if the defendant failed to successfully complete the "TASC" program, the court would resentence the defendant to incarceration for one year in the County Jail.

Apparently, the District Attorney's office had initially sought an indeterminate sentence of incarceration. Furthermore, the probation report had also recommended incarceration of not more than 60 days, probation, and special alcohol conditions, in view of the defendant's four prior convictions involving driving while intoxicated or impaired, his "alarming" behavior, and his apparent "minimizing a well established pattern of alcohol abuse". At the time of sentencing, the court specifically noted that the prosecutor had been "reluctanto agree to a sentence which was more lenient than that offered prior to trial and went on to compliment him for eventually agreeing to the conditional sentence that was imposed.

During the proceedings, the defense counsel acknowledged that the defendant understood that the sentence was conditioned upon his waiver of his right to appeal, and added that both he and the defendant were "quite pleased" that the court was "allowing him this opportunity to avoid incarceration and hopefully deal with his alcohol problem". The defendant thanked the court and stated that he was "very sincere about abiding by the rules set forth". The court also granted the defendant a certificate of relief from disabilities, the defendant having requested the same so that his business would be able to bid on Government and defense contracts and so that he could retain his Federal firearms permits.

The defendant now asserts that the enforcement of his express postverdict waiver of his right to appeal is against public policy and that the waiver is therefore void. He also contends that, in any event, the waiver should not be enforced because he allegedly did not voluntarily waive his right to appeal since the waiver was coerced by his desire to avoid imprisonment and that his will was undermined by the conduct of the court and prosecutor, who threatened imprisonment unless he waived his right to appeal.

It is settled law that particular aspects of the right to appeal may be forfeited or waived under certain conditions. For instance, a plea of guilty, by operation of law, generally precludes appellate review of nonjurisdictional defects in the proceedings ( People v. Motley, 69 N.Y.2d 870, 871-872, 514 N.Y.S.2d 715, 507 N.E.2d 308; People v. Prescott, 66 N.Y.2d 216, 220, 495 N.Y.S.2d 955, 486 N.E.2d 813, cert. denied 475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349; People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755). Indeed, the failure to timely file a notice of appeal may preclude appellate review entirely (CPL 460.30).

The People contend that the defendant's waiver of his right to appellate review of his conviction upon a jury verdict and adverse trial rulings is analogous to waiver of the right to raise suppression issues on appeal as a part of a plea agreement ( see, People v. Williams, 36 N.Y.2d 829, 370 N.Y.S.2d 904, 331 N.E.2d 684, cert. denied 423 U.S. 873, 96 S.Ct. 141, 46 L.Ed.2d 104) and should be permitted. We agree with the People's contention that the waiver at issue is analogous to the waiver of the right to raise suppression hearing rulings on appeal. Not only is the denial of a suppression motion similar to the overruling of an objection at trial, but a suppression ruling may be just as important as a trial ruling because a suppression ruling may be pivotal to the proof of guilt at trial. Moreover, while CPL 710.70(2) expressly preserves the right to raise on appeal the denial of a suppression motion despite a guilty plea, appellate review of the suppression ruling may be expressly waived as a condition of a guilty plea (People v. Williams, supra; People v. Moore, 123 A.D.2d 363, 506 N.Y.S.2d 375, lv. denied 68 N.Y.2d 1002, 510 N.Y.S.2d 1035, 503 N.E.2d 132).

Nor should the waiver at bar be unenforceable as violative of public policy. On the contrary, in the instant situation, the public interest is furthered since such a waiver permits the conservation of judicial and prosecutorial resources for those cases where more substantial issues are raised by the trial rulings and verdict. A similar analysis is the basis for upholding guilty plea agreements which necessarily waive certain rights attendant to trial and forfeit the right to renew arguments made before the plea was accepted ( People v. Prescott, supra, 66 N.Y.2d at 220, 495 N.Y.S.2d 955, 486 N.E.2d 813; see also, Brady v. United States, 397 U.S. 742, 752, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747).

Finally, as with a waiver of the right to appellate review of suppression rulings, various safeguards ensure against abuse of the practice of conditioning sentencing agreements on an explicit waiver of the right to appeal:

"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 NY2d 227, 235 cert den 419 US 1122 ), 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 440.30) or a writ of habeas corpus for the same reasons (see Bellacosa, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 440.10, p 320)" ( People v Jandrew, 101 A.D.2d 90, 93-94, 475 N.Y.S.2d 906).

Like a guilty plea conditioned on a waiver of the right to appeal, the sentence agreement at bar allowed the defendant to exchange his promise not to appeal from the judgment of conviction and seek review of prior rulings in exchange for the prosecutor's promise not to oppose a disposition of the matter which the defendant saw as advantageous. Thus, the agreement benefited the defendant by foreclosing a harsher punishment and benefited the People by ending the litigation and allowing conservation of both judicial and prosecutorial resources. As the Court of Appeals noted in the analogous plea bargaining situation, "a defendant who accepts a 'carefully orchestrated...