People v. Thomas

Decision Date19 May 1980
PartiesThe PEOPLE, etc., Respondent, v. James THOMAS, a/k/a Willie Thomas, Appellant.
CourtNew York Supreme Court — Appellate Division

Rhodes & Fisher, Brooklyn, (Barry Gene Rhodes, Brooklyn, of counsel), for appellant.

Eugene Gold, Dist. Atty., Brooklyn, (Morris Harary, Asst. Dist. Atty., Brooklyn, of counsel), for respondent.

Before HOPKINS, J. P., and LAZER, MARGETT and O'CONNOR, JJ.

LAZER, Justice.

The threshold issue on this appeal is the propriety of the procedure by which the defendant pleaded guilty to the charges against him, but reserved certain rights for appeal. We hold that the appeal is not properly before us.

The defendant was indicted for reckless endangerment in the first degree, criminal possession of a weapon in the third and fourth degrees and reckless driving. On July 19, 1978, pursuant to an agreement with the District Attorney, the defendant entered a conditional plea of guilty to the first three counts of the indictment. During the allocution, the defendant read two prepared statements, one admitting to the facts underlying the reckless endangerment charge, and the second admitting to the possession of two handguns. As to the reckless endangerment, the defendant declared that on June 10, 1977 at 2:30 A.M. on certain named streets in Brooklyn, in the course of fleeing pursuit by a police car, he drove his car for several minutes at a speed of 60 miles per hour over a distance of about 25 blocks, passing five red lights and passing by numerous parked cars and some moving cars until the car came to a halt after jumping the curb. Concerning the weapons charge, the defendant stated that there were two other persons in the car; one in the front passenger seat, the other in the rear seat. There were two weapons in the car, a loaded .38 calibre revolver and an unloaded .25 calibre automatic pistol, both hidden beneath the rear seat on the driver's side. Both guns belonged to the defendant and he knew their location as he drove the car. Under the agreement with the District Attorney, the two issues which were to survive the plea were (1) the sufficiency of the facts alleged to constitute the reckless endangerment in the first degree (i. e., the speed of the car and the surrounding circumstances); and (2) the constitutionality of the presumption of possession of the weapons in subdivision 3 of section 265.15 of the Penal Law * as applied to the facts in the case. The trial court accepted the conditional plea of guilty and subsequently imposed sentence.

The appeal raises the two grounds preserved under the agreement, and both parties now request that the conditional plea be given effect and that we entertain the appeal. Before reaching the specific reasoning for our determination not to do so, we pause to consider in a broader context the question of appeals following pleas of guilty.

As a general rule, a plea of guilty, intelligently and voluntarily entered, operates as a waiver of certain fundamental constitutional defects (People v. La Ruffa 34 N.Y.2d 242, 356 N.Y.S.2d 849, 313 N.E.2d 332) and bars the later assertion of constitutional challenges to pretrial proceedings (see the Brady trilogy: Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785). In Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235, which has become an addendum to the Brady trilogy, the United States Supreme Court wrote:

"When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea."

Therefore, only those issues fully disclosed in the record which relate either to the exercise of jurisdiction by the court or to the voluntary and knowing nature of the plea are appealable after a plea of guilty. Since a guilty plea is not merely a confession but is itself a "conviction" (Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274), objections which go to the factual finding of guilt and not either to the right of the People to prosecute (see People v. Gilliam, 65 A.D.2d 533, 409 N.Y.S.2d 400), or to the validity of the plea itself (People v. Meachem, 50 A.D.2d 953, 375 N.Y.S.2d 678), are deemed waived by such a plea. The plea court is obligated, however, to inquire of the defendant concerning the facts and circumstances of the crime to ascertain whether the plea was voluntarily and knowingly made (People v. Nixon, 21 N.Y.2d 338, 287 N.Y.S.2d 659, 234 N.E.2d 687; People v. Nenni, 70 A.D.2d 774, 417 N.Y.S.2d 347; People v. Jackson, 54 A.D.2d 1132, 389 N.Y.S.2d 77) and thus whether it constituted a valid plea of guilt (People v. Serrano, 15 N.Y.2d 304, 258 N.Y.S.2d 386, 206 N.E.2d 330).

The fact that the question raised on appeal is of constitutional proportion does not necessarily determine its jurisdictional nature. This is because a guilty plea renders irrelevant those constitutional violations which are not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established (Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195). The constitutional issues which do implicate jurisdiction and thus survive a plea of guilty go to the very right of the state to hold a trial. Thus the claim of double jeopardy (Menna v. New York, supra ), the constitutionality of the statute claimed to be violated (Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923), the competency of the defendant to stand trial (People v. Armlin, 37 N.Y.2d 167, 371 N.Y.S.2d 691, 332 N.E.2d 870; People v. Francabandera, 33 N.Y.2d 429, 354 N.Y.S.2d 609, 310 N.E.2d 292), and a defective indictment which does not effectively charge defendant with the commission of a crime (People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 872), are all issues which go to the right of the state to try the defendant and may be raised on appeal after a plea of guilty. Whether the failure to afford a speedy trial goes to the same right may be debatable, but the right to appellate review of a denial of a speedy trial motion also survives a plea of guilt (People v. Blakley, 34 N.Y.2d 311, 357 N.Y.S.2d 459, 313 N.E.2d 763; People v. Wallace, 26 N.Y.2d 371, 310 N.Y.S.2d 484, 258 N.E.2d 904).

Claims that the guilty plea was induced by duress (People v. Flowers, 30 N.Y.2d 315, 333 N.Y.S.2d 393, 284 N.E.2d 557) or taken without assistance of counsel (Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126) go to the voluntary and knowing nature of the plea and are preserved for appellate review (see People v. White, 32 N.Y.2d 393, 345 N.Y.S.2d 513, 298 N.E.2d 659). Also classified as involuntary are pleas induced by promises or representations later broken (Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; People v. Selikoff, 35 N.Y.2d 227, 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). Where the promises relate to the defendant's co-operation in other investigations, public policy considerations mandating fulfillment of the promises may be of such force (see Matter of Chaipis v. State Liq. Auth., 44 N.Y.2d 57, 404 N.Y.S.2d 76, 375 N.E.2d 32) as to preserve a right of appeal even though the plea of guilt is unrelated to the representations made (see People v. Argentine, 67 A.D.2d 180, 414 N.Y.S.2d 732, after remand, 71 A.D.2d 869, 422 N.Y.S.2d 736).

If the defendant's complaint relates to the loss of trial and pretrial rights and safeguards, a plea of guilty surrenders both the constitutional and nonconstitutional protections. Thus, the right to a jury trial (Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491), the right of confrontation (Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923), the right to compulsory process for obtaining favorable witnesses (Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019), the privilege against self-incrimination (Matter of D., 27 N.Y.2d 90, 313 N.Y.S.2d 704, 261 N.E.2d 627, cert. den. sub nom. D. v. County of Onondaga, 403 U.S. 926, 91 S.Ct. 2244, 29 L.Ed.2d 705), the sufficiency of Grand Jury minutes (People v. O'Neal, 44 A.D.2d 830, 355 N.Y.S.2d 21), the improper omission to provide a bill of particulars (People v. Hendricks, 31 A.D.2d 982, 297 N.Y.S.2d 838), the propriety of the denial of defendant's motion for a separate trial (People v. Smith, 41 A.D.2d 893, 342 N.Y.S.2d 513), the claim of insufficiency in the factual allegations of an indictment or an objection to the form of the instrument (People v. Iannone, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656), the correctness of a Sandoval ruling (People v. Gilliam, 65 A.D.2d 533, 409 N.Y.S.2d 400, supra ), are all effectively waived by a plea of guilty. The rationale is apparent the mentioned rights and safeguards are provided to protect those who choose to undergo a trial determination of their guilt; thus, those who voluntarily admit their guilt by plea waive their prerogative to assert on appeal the loss of those protections. Similarly, the illegality of an arrest does not divest the court of jurisdiction, and without more, it is not preserved for appeal after a plea (see People v. Grant, 16 N.Y.2d 722, 262 N.Y.S.2d 106, 209 N.E.2d 723; People v. Brown, 22 A.D.2d 920, 255 N.Y.S.2d 502).

Since a record is a prerequisite of an appeal (People v. Vignera, 21 A.D.2d 752, 252 N.Y.S.2d 19), the issue of the voluntariness of a confession never litigated (People v. Nicholson, 11 N.Y.2d 1067, 230 N.Y.S.2d 220, 184 N.E.2d 190), or a record "barren of any reference to the absence of counsel" at a lineup...

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