People v. Ventura

• Decision Date: 14 July 1988
• Parties: The PEOPLE of the State of New York, Respondent, v. Alfredo VENTURA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 526

531 N.Y.S.2d 526

139 A.D.2d 196

The PEOPLE of the State of New York, Respondent, v. Alfredo VENTURA, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

July 14, 1988.

Donald J. Siewert, of counsel (Mark Dwyer with him on the brief, Robert M. Morgenthau, attorney) for respondent.

Noah Lipman, of counsel (David Segal, attorney) for defendant-appellant.

Before KUPFERMAN, J.P., and SANDLER, CARRO, ROSENBERGER and SMITH, JJ.

CARRO, Justice.

In 1975, in a brief per curiam opinion, 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, the Court of Appeals, under the "circumstances" of that case, upheld the defendant's waiver of his right to appeal an adverse suppression ruling which was exacted by the prosecutor as a condition to his plea. Since then, our fellow Appellate Division courts, evidently perceiving Williams as having given prosecutors carte blanche to condition pleas to the waiver of appellate review of suppression rulings, have given effect to such waivers, as long as they are shown to have been entered knowingly and voluntarily. See e.g. People v. Jenkins, 118 A.D.2d 731, 500 N.Y.S.2d 64 (2d Dept.); People v. Pescatore, 102 A.D.2d 834, 476 N.Y.S.2d 465 (2d Dept.); People v. Jandrew, 101 A.D.2d 90, 475 N.Y.S.2d 906 (3rd Dept.); People v. Durant, 101 A.D.2d 1008, 476 N.Y.S.2d 671 (4th Dept.); People v. Santana, 99 A.D.2d 586, 471 N.Y.S.2d 414 (3rd Dept.); People v. DiOrio, 99 A.D.2d 593, 594, 471 N.Y.S.2d 701 (3rd Dept.); People v. Gray, 75 A.D.2d 826, 432 N.Y.S.2d 153 (2d Dept.); People v. Juliano, 74 A.D.2d 881, 426 N.Y.S.2d 23 (2d Dept.).

This court has yet to rule definitively on the validity of waivers of the right to appeal suppression rulings. In two cases which presented this issue, People v. De Santis, 118 A.D.2d 1050, 499 N.Y.S.2d 565, lv. to appeal denied, 67 N.Y.2d 941, 502 N.Y.S.2d 1033, 494 N.E.2d 118, and People v. Barnes, 133 A.D.2d 550, 519 N.Y.S.2d 285, lv. to appeal denied, 70 N.Y.2d 873, 523 N.Y.S.2d 500, 518 N.E.2d 11, this court affirmed the judgments without opinion. These decisions, however, cannot be interpreted as sub silentio blanket approvals of conditioning pleas to waivers of appellate review. To the contrary, our recent decision in People v. Velazquez, 140 A.D.2d 179, 527 N.Y.S.2d 972, clearly demonstrates the unresolved nature of this issue in this judicial department. In Velazquez, a majority of the court specifically declined to reach the question of the validity of the waiver, a plain admission that there is some concern in this area. Two justices dissented, concluding that to give effect to the waiver in Velazquez would be inconsistent with the facts in People v. Williams, supra, and People v. Esajerre, 35 N.Y.2d 463, 363 N.Y.S.2d 931, 323 N.E.2d 175, another decision often cited for the validity of waivers of appellate review of suppression issues.

I believe the approach of the dissenters in Velazquez is correct, and I would elaborate. The time is ripe to take a hard look at whether the important public policy of this State to provide defendants at least one level of appellate review is offended by a prosecutorial practice of conditioning pleas to waivers which purportedly insulate suppression rulings from appellate review, divest this Court of its intended role in correcting errors of constitutional magnitude, and do so without furthering, in the least, any legitimate State interest. The facts surrounding the waiver herein make a compelling case for the need to establish public policy limits to conditioning pleas to waivers of appellate review. Establishing such limits is the work of this court, and the purpose of this opinion.

Early in the afternoon of December 17, 1986, Police Officers Diaz and Atkins were patrolling in uniform in a marked police car on Audabon Avenue in Manhattan, an area described by Diaz as "drug prone." ¹ As Atkins drove southbound, Diaz noticed two men, one of whom was defendant, walking in a northerly direction, talking to each other. At that point, Atkins, without specifying to which of the two men he was referring, said "that guy has a gun." Erroneously assuming that Atkins was referring to defendant, Diaz turned to defendant and observed that he was "playing inside his jacket," or seemingly "fixing something" "inside his inner jacket pocket." Diaz testified that he thought defendant might be adjusting a holster. The officers decided to park their car and follow the two men, who had entered a locked building and were in the vestibule area.

As the officers reached the building, one of three elderly men who were also in the vestibule area opened the outside door for them. With hands on their guns, the officers entered the vestibule and observed defendant with a set of keys "fidgeting or trying to open the door" which led from the vestibule to the building's interior. The six-foot-four, 270-pound Diaz approached defendant and positioned himself to defendant's right. Defendant peered over his shoulder at Diaz but would not look "directly" at Diaz. Diaz noticed that defendant appeared "nervous" and that his hands were "trembling" as he fidgeted with the door. Diaz asked defendant whether he lived in the building. Defendant answered that he did. Although observing that defendant did have keys, Diaz decided to ask again. This time, defendant replied "No."

Defendant, now facing and talking to Diaz, was making motions with his hands towards his chest. Diaz testified that defendant's nervousness made him nervous. When Diaz noticed a bulge on the left side of defendant's zippered jacket, without making any inquiry, he placed his hand over the bulge, felt that it was "hard" and immediately ordered defendant to open his jacket. Defendant complied, and Diaz reached in and retrieved from the left inside pocket a brown paper bag containing two "zip-lock" plastic bags containing nine ounces of cocaine. ² The smaller bag was wrapped in toilet tissue.

Defendant disputed Diaz' account in several respects. He testified that his aunt lived in the building and had given him a key, since he visited regularly. He was having trouble opening the door when the officers arrived, because the lock was damaged. Defendant claims to have told the police officers that he did not live in the building and denied waving his hands around as he spoke. He also differed with Officer Diaz as to how the drugs were seized. He testified that he was carrying a small bag wrapped in toilet tissue in the left inside jacket pocket and a larger brown paper bag inside the right side of the jacket. He testified that no bulge was visible on the left side of the jacket, but that there was a bulge on the right side. Denying knowledge of the contents of the brown paper bag, defendant explained that someone had given it to him to deliver. Defendant also denied being patted first and testified that the officer turned him around, placed him face-up against the wall and searched him.

The hearing court credited Diaz' testimony and concluded that his conduct in touching the bulge and ordering defendant to open his jacket was reasonable under the circumstances. The court denied suppression.

At the close of the hearing, defendant's counsel disclosed the fact that prior to the hearing the People had offered defendant a plea to second-degree possession with a sentence promise of three years to life, but only if he would withdraw his motion to suppress. The People had further advised defendant that should he lose the motion, the sentence offer would be doubled to six years to life.

At the plea allocution itself, defense counsel again protested the fact that the sentence promise had been doubled, but omitted mentioning that a condition of the new plea offer was that defendant waive appellate review of the suppression ruling. When the court inquired about this omission, counsel responded: "I didn't state that because I wanted the defendant to state that on the record.... The defendant has no other alternative but to accept that condition. I've advised him of that." The court then asked defendant whether he understood this condition, to which defendant replied "Yes." Defendant was subsequently convicted and sentenced as promised. Defendant now appeals, seeking a reversal of the suppression ruling. The People argue that this issue is not properly before us, since defendant waived his right to appeal the ruling. We reach this issue in the interest of justice and hold that under the facts of this case, this waiver is invalid.

Generally, all rights to which a person is legally entitled are waivable, "whether secured to him by contract, conferred upon him by statute or guaranteed him by the Constitution," People ex rel. McLaughlin v. Police Commissioner, 174 N.Y. 450, 456, 67 N.E. 78. Such waivers, however whether in the context of civil or criminal cases, are susceptible to challenge if not knowingly and voluntarily entered, if the product of fraud, duress or coercion, or if they transgress public policy. See Hadden v. Consolidated Edison Co., 45 N.Y.2d 466, 469, 410 N.Y.S.2d 274, 382 N.E.2d 1136; People v. Blakley, 34 N.Y.2d 311, 313, 357 N.Y.S.2d 459, 313 N.E.2d 763; People v. White, 32 N.Y.2d 393, 399-400, 345 N.Y.S.2d 513, 298 N.E.2d 650. ³ When the waiver involves a right as important as the right of appellate review, this court, as the court of last resort in most cases, and, certainly, as the court of last resort on the facts, has an especially compelling duty to examine the record to assure itself of the validity of such a waiver. Moreover, when the waiver occurs in the inherently coercive atmosphere of plea bargaining, People v. White, supra, 32 N.Y.2d at 400, 345 N.Y.S.2d 513, 298 N.E.2d 659, this court, in the interest of justice, has an equally compelling duty to act as a check against potential abuses of prosecutorial powers.

Without a doubt, there are individual cases which...