People v. White

• Citation: 752 N.Y.S.2d 166,300 A.D.2d 830
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>DOUGLAS WHITE, Appellant.
• Decision Date: 19 December 2002
• Court: New York Supreme Court Appellate Division

300 A.D.2d 830

752 N.Y.S.2d 166

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.DOUGLAS WHITE, Appellant.

Mugglin, J.

Decided December 19, 2002.

Crew III, J.P., Carpinello, Rose and Kane, JJ., concur.

Mugglin, J Defendant was charged in a multicount indictment with the commission of various drug-related offenses. After plea bargain negotiations floundered, his counsel made an omnibus motion seeking suppression of the physical evidence seized pursuant to a search warrant which authorized the search of his home, inter alia, on the ground that the warrant was executed in violation of CPL article 690 in terms of time, notice and manner of entry. County Court scheduled a suppression hearing for January 22, 2001. Nevertheless, upon receipt of a better bargain, defendant entered a plea of guilty on January 19, 2001 to criminal possession of a controlled substance in the second degree, a class A-II felony, in full satisfaction of the indictment. Pursuant to this agreement, the People recommended a sentence of eight years to life and, although defendant had to forfeit cash (seized during the search of his home and from his safe deposit box) and one vehicle, the People agreed to forego forfeiture proceedings against defendant's home and several other vehicles. For his part, defendant agreed to waive his right to appeal. Defendant was sentenced in accordance with the plea bargain agreement on March 30, 2001, whereupon he executed a document which, among other things, recites that he does not wish to appeal. Defendant has not appealed from this judgment of conviction. On May 9, 2001, however, defendant moved, pro se, to vacate the judgment of conviction pursuant to CPL 440.10 (1) (h), claiming that the manner of execution of the search warrant violated his constitutional rights and that he had received ineffective assistance of counsel. County Court denied defendant's motion without a hearing, concluding that sufficient facts appeared in the record permitting judicial review of these issues on direct appeal, which defendant unjustifiably failed to take. We granted leave to appeal.

Defendant argues that the physical evidence seized from his home should have been suppressed because the authorities executed the warrant (which did not contain a "no knock" provision) in violation of the provisions of CPL 690.50 and in derogation of his federal and state constitutional rights. He also asserts that he received the ineffective assistance of counsel due to trial counsel's failure to pursue the suppression of this physical evidence.

We first note that defendant makes no claim challenging the efficacy of his plea or waiver of appeal. Indeed, our review of these proceedings satisfies us that the plea and waiver of appeal were made knowingly, intelligently and voluntarily (see People v Eaddy, 200 AD2d 896, 897, lv denied 83 NY2d 852).

As a consequence, entry of the guilty plea constitutes an affirmative waiver of all undetermined suppression issues (see People v Berezansky, 229 AD2d 768, 771, lv denied 89 NY2d 919; People v Jones, 183 AD2d 918, lv denied 80 NY2d 905; People v Aponte, 180 AD2d 910, lv denied 79 NY2d 997).

Next, we are of the view that County Court correctly denied the CPL article 440 motion without a hearing. Defendant has failed to offer a satisfactory explanation for not raising the issues concerning the execution of the search warrant prior to sentence (see People v Berezansky, supra at 771). First, defendant's preplea omnibus motion sought suppression of the physical evidence on...