People v. Whitehurst

291 A.D.2d 83, 737 N.Y.S.2d 152, 2002 N.Y. App. Div. LEXIS 861
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJanuary 31, 2002
StatusPublished
Cited by23 cases

This text of 291 A.D.2d 83 (People v. Whitehurst) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Whitehurst, 291 A.D.2d 83, 737 N.Y.S.2d 152, 2002 N.Y. App. Div. LEXIS 861 (N.Y. Ct. App. 2002).

Opinion

OPINION OF THE COURT

Spain, J.

In November 1995, defendant was indicted for, inter alia, murder in the first degree in connection with the death of a young girl, and the People thereafter filed a notice of intent to seek the death penalty. One year later, while represented by the Capital Defender Office, defendant pleaded guilty to murder in the first degree in satisfaction of the 28-count indictment and was sentenced to life in prison without parole. On September 28, 1998, defendant filed a CPL 440.10 motion seeking to, inter alia, vacate the judgment of conviction and sentence, dismiss the underlying indictment and enforce a cooperation agreement in which the People had made promises to defendant in exchange for his assistance in locating the missing child. After a hearing, County Court denied defendant’s motion. Defendant appeals from the judgment of conviction [85]*85and, by permission of this Court, from the order denying his CPL 440.10 motion. .

The relevant facts are largely undisputed. On September 21, 1995 a seven-year-old girl disappeared from the front yard of her home in the City of Kingston, Ulster County. Defendant was questioned by police within hours of the girl’s disappearance and denied any involvement. Thereafter, defendant retained an attorney, but after he was taken into custody and charged with kidnapping in the first degree, the attorney withdrew as counsel due to defendant’s failure to pay a retainer. Thereafter, defendant was questioned regarding the whereabouts of the child.

The next day, September 24, 1995, defendant stated that he could help the police find the child and demanded the presence of an Assistant District Attorney. Negotiations ensued, during which defendant asserted that there was a possibility that the child was still alive, and defendant and the Assistant District Attorney signed a written “cooperation agreement” by which defendant agreed to disclose information relative to the child’s whereabouts and plead guilty to kidnapping in exchange for the People’s promise not to charge defendant with murder. The agreement provided that defendant would receive a minimum sentence of 10 years if the child were found alive and a minimum sentence of between 10 and 15 years if she were found dead. A handwritten addendum to the agreement stated that defendant had the right to go to trial, but that the exercise of that right would void the agreement.

Defendant then led law enforcement personnel on a circuitous search for the child. During the search, defendant indicated that he had struck the girl in the head with a rock and strangled her, but he knew that she was alive when he left her because she was moaning. After over five hours of searching several different locations, defendant led the search team to a wooded area in the Town of Ulster, Ulster County, where the child’s body was found buried under leaves and sticks with only a portion of her foot exposed. An autopsy and forensic examination of the body indicated that the child had been sexually abused and died instantly as a result of a massive blunt force injury to the head.

Thereafter, the People expressly repudiated the cooperation agreement and charged defendant in a felony complaint with murder in the second degree. Following arraignment, defendant commenced a CPLR article 78 proceeding to prohibit the People from prosecuting him for murder in the first or second [86]*86degree. Supreme Court (Hughes, J.) held that prohibition was not appropriate and permitted the prosecution to continue (Whitehurst v Kavanagh, 167 Misc 2d 86, 89-92). On appeal, this Court affirmed (Matter of Whitehurst v Kavanagh, 218 AD2d 366, lv dismissed and denied 88 NY2d 873). In the meantime, defendant was indicted and the People filed a notice of intent to seek the death penalty. Approximately one year after the indictment — and more than six months after the Court of Appeals foreclosed defendant’s appeal in the prohibition proceeding — defendant accepted the People’s offer to plead guilty to murder in the first degree. At the time of the plea, pretrial hearings had not commenced and County Court had not ruled on defendant’s pending motions to suppress evidence and to dismiss the indictment.

Defendant first contends that his guilty plea must be vacated because County Court failed to specifically advise him prior to accepting the plea that he would be relinquishing his rights under the cooperation agreement and abandoning his pretrial motions to dismiss the indictment and suppress evidence. Upon review, however, we find that the plea was knowingly, intelligently and voluntarily made and operated to extinguish any claims that defendant may have had under the cooperation agreement, as well as his rights to pursue his pretrial motions, despite the court’s failure to explicitly address those specific consequences of the guilty plea.

“A guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings * * *” (People v Fernandez, 67 NY2d 686, 688 [citation omitted]; see, People v Hansen, 95 NY2d 227, 230; People v Hamilton, 232 AD2d 899, 900, lv denied 89 NY2d 942), and “trial courts are not required to engage in any particular litany during an allocution in order to obtain a valid guilty plea in which defendant waives a plethora of rights” (People v Moissett, 76 NY2d 909, 910-911). During the plea colloquy, defendant informed County Court that, inter alia, he had discussed the plea with his attorneys and that he was satisfied with their services, that he was entering the plea by his own free will and that no other sentencing promises had been made to him to induce his guilty plea. After defendant’s allocution, which contained nothing to cast doubt upon the voluntariness of his plea (cf., People v Lopez, 71 NY2d 662, 666), the court asked defendant if there was anything else that he wished to place on the record, to which defendant responded, “Nothing, Your Honor, that is it.” Under these circumstances, we hold that the [87]*87plea colloquy was sufficient and that defendant’s plea was knowing, intelligent and voluntary (see, People v Bolden, 289 AD2d 607; People v McCabe, 289 AD2d 603; People v Berthiaume, 240 AD2d 953, 953-954).

We next turn to defendant’s assertion that his plea was not voluntarily made because the proviso in the cooperation agreement — that it would be void if defendant elected to go to trial— made him feel compelled to plead guilty and forego going to trial in order to preserve his contractual rights under the cooperation agreement. The implausibility of this argument becomes apparent upon examination of the relevant, undisputed facts. Defendant contends that he felt forced to plead guilty to preserve his rights under the cooperation agreement and yet, rather than asserting those alleged rights to County Court, he pleaded guilty to murder in the first degree with the advice of counsel and without reservation of any kind, an outcome not contemplated by the cooperation agreement that he supposedly was attempting to enforce. Defendant’s assertion that his plea in open court on the murder charge was rendered involuntary because he believed himself bound by a provision in a prior agreement — which the People were not in any respect relying on at the time that he entered his plea — is incredible and meritless (cf., People v Lozovsky, 267 AD2d 774, 775, lv denied 95 NY2d 836). .

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Cite This Page — Counsel Stack

Bluebook (online)
291 A.D.2d 83, 737 N.Y.S.2d 152, 2002 N.Y. App. Div. LEXIS 861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-whitehurst-nyappdiv-2002.