People v. Rodriguez

79 A.D.2d 539, 433 N.Y.S.2d 584, 1980 N.Y. App. Div. LEXIS 13844

Opinions

Judgment of the Supreme Court, Bronx County, rendered November 30, 1978, convicting defendant of criminal sale of a controlled substance in the third degree and sentencing him to an indeterminate term of from four years to life affirmed. Defendant’s contention that the court erred in refusing to grant him a hearing on his motion under CPL 210.20 (subd 1, par [h]) to dismiss the indictment upon the ground of selective prosecution is untenable. First, it is observed that defendant pleaded guilty

* subsequent to the denial of his motion to dismiss the indictment on the ground stated. A claim of selective prosecution is not a jurisdictional objection. It does not challenge the authority or power of the court to act. As a general rule, a plea of guilty is a waiver of all nonjurisdictional defects (People v Vina, 47 AD2d 895). Further, viewing this claim as one of constitutional dimension (People v Goodman, 31 NY2d 262, 268), we conclude that, unlike an assertion of double jeopardy (Menna v New York, 423 US 61), the claim was waived by the plea (People v Siciliano, 40 NY2d 996; People v Rodriguez, 50 NY2d 553). In any event, there is nothing in the record to indicate that defendant at time of plea made any attempt to preserve a right to appeal from the denial of his motion (cf. People v Siciliano, 52 AD2d 408, concurring opn). Accordingly, defendant is now foreclosed from pressing his claim. A plea of guilty should signal the end of a criminal action, not the beginning (People v Giuliano, 52 AD2d 240). Assuming, arguendo, that the claim is not barred by the plea (a view we do not accept), we find, contrary to defendant’s contention, that a hearing pursuant to CPL 210.45 (subd 6) was not mandated. Defendant’s affidavit discloses that it rests upon assumption and surmise rather than factual allegations. Thus, the application does not fall within CPL 210.45 (subd 6) but rather is controlled by CPL 210.45 (subd 5, par [b]) which provides that a court may deny such motion without a hearing if the moving papers “do not contain sworn allegations supporting all the essential facts” (emphasis added). People v Marcus (90 Misc 2d 243), cited by defendant in support of his contention that he is entitled to a hearing on the issue of selective prosecution, does not substantiate his position. That ease, just as the one at bar, involved a narcotics charge in which defendant claimed he was prosecuted in the State rather than the Federal court in retaliation for having failed to co-operate with the Federal authorities. The Trial Judge, in Marcus, obviated any deficiency in the moving papers by taking judicial notice, “based on [his] own experience” in similar cases, that a defendant must co-operate with the Federal authorities by giving a full statement of defendant’s activities and implicating all others involved, failing which defendant would be prosecuted in the State rather than the Federal court (People v Marcus, supra, pp 246-247). We do not believe we should go so far as to presume “essential facts” not alleged in the affidavit, in order to entitle defendant to a hearing as a matter of law under CPL 210.45. Defendant’s request for reduction of his sentence in the interest of justice has also been considered by us. However, we find no merit to this entreaty. Concur—Murphy, P. J., Kupferman, Birns and Yesawich, JJ.

Defendant was represented by counsel at all stages of the criminal action, including plea and sentence. He pleaded guilty after the court had explained the range of possible sentences and had assured itself the plea was voluntary. Upon sentence, he was offered an opportunity to withdraw his plea because of an error made by the court during the plea allocution as to such sentence. Defendant, however, chose not to do so.