Opinion
April 14, 1989
Appeal from the Supreme Court, Erie County, Drury, J.
Helen W. Zimmerman (Kristin Preve of counsel), for appellant.
Kevin M. Dillon, District Attorney (J. Michael Marion of counsel), for respondent.
Presented as an issue of first impression is the question whether a defendant who timely objects to the allegedly discriminatory use of peremptory challenges by the prosecutor (see, Batson v Kentucky, 476 U.S. 79) foregoes his right to raise this issue on appeal after he enters a plea of guilty. We hold that he does.
After the conclusion of jury selection, defense counsel advised the court that defendant desired to accept the plea offered by the People. Before the plea allocution, however, defense counsel moved for a mistrial based on the prosecutor's allegedly discriminatory use of his peremptory challenges to exclude all black venire persons from the jury. Defendants made out a prima facie case of discrimination and the court required the prosecutor to provide racially neutral reasons for his challenges (see, People v Scott, 70 N.Y.2d 420, 423). The prosecutor set forth his reasons and the court denied the motion. Defense counsel, based on the court's ruling, then indicated that defendant wished to accept the People's plea offer.
During the plea allocution, defendant was fully advised by the court that, by pleading guilty, he was waiving his constitutional rights to confrontation and to trial by jury and his privilege against self-incrimination. Defendant stated that he knew and understood the rights he was waiving and was doing so voluntarily and of his own free will. Defendant, though unwilling to admit the underlying facts of the crime charged, stated that he was knowingly entering his plea to the lesser charge of attempted rape in the first degree in order to limit the possible penalty he would face if convicted at trial. The court, after again querying defendant whether he understood the consequences of the plea, accepted his Alford plea (see, North Carolina v Alford, 400 U.S. 25).
Defendant was charged with rape in the first degree (two counts) (Penal Law § 130.35 [1]; § 20.00), sodomy in the first degree (Penal Law § 130.50 [1]; § 20.00), unlawful imprisonment (Penal Law § 135.10, 20.00 Penal) and robbery in the second degree (Penal Law § 160.10 [1]).
At sentencing, defendant moved to withdraw his guilty plea on the grounds that he had not understood the consequences of his plea; that he had been led to believe that he could withdraw his plea at any time prior to sentencing; and that he was under stress when he pleaded guilty. The court denied defendant's motion and sentenced him in accordance with the plea bargain to a minimum of 1 1/2 years' and a maximum of 4 1/2 years' imprisonment.
In People v Prescott ( 66 N.Y.2d 216, 219-220, cert denied 475 U.S. 1150), after reviewing cases dealing with the issue of what rights survive a guilty plea, Judge Simons concluded that "[t]here is no mechanical rule that establishes" which claims will be deemed forfeited by a guilty plea. Issues that have been held to survive a guilty plea are those which relate to the exercise of jurisdiction by the court or to the knowing or voluntary nature of the plea (see, People v Thomas, 74 A.D.2d 317, 319-320, affd 53 N.Y.2d 338). Additionally, certain constitutional rights have been held to survive a plea: the right to a speedy trial (People v Blakley, 34 N.Y.2d 311, 314); the competency of a defendant to stand trial (People v Armlin, 37 N.Y.2d 167); a claim of double jeopardy (Menna v New York, 423 U.S. 61); and the constitutionality of the statutes deemed to be violated (Haynes v United States, 390 U.S. 85). Numerous other rights of both constitutional and nonconstitutional dimension, however, have been held not to survive, including: the right to trial by a jury (Duncan v Lousiana, 391 U.S. 145); the right to confrontation (Pointer v Texas, 380 U.S. 400); the alleged unconstitutional presumption in a statute (People v Thomas, 53 N.Y.2d 338, supra); an allegation of selective or vindictive prosecution (People v Rodriguez, 55 N.Y.2d 776); or a challenge based on allegedly discriminatory composition of the Grand Jury (People v Siciliano, 40 N.Y.2d 996, rearg denied 41 N.Y.2d 901, appeal dismissed 430 U.S. 980).
A statutory speedy trial claim, however, is waived by a guilty plea (see, People v O'Brien, 56 N.Y.2d 1009, 1010).
When a defendant asserts a Batson claim, he contends that he has been deprived of a trial by a properly constituted jury. Such claim does not relate to the exercise of jurisdiction by the court or to the knowing or voluntary nature of the plea (see, People v Thomas, supra, at 319-320). Defendant's Batson claim does, however, raise issues of constitutional dimension, to wit, defendant's Sixth Amendment right to a trial by jury and his Fourteenth Amendment right of equal protection of the law.
Defendant, by pleading guilty, specifically waived his right to any trial, either jury or nonjury (see, People v Dwight S., 29 N.Y.2d 172, 175-176; People v Lynn, 28 N.Y.2d 196, 201-202). Further, as stated in People v Di Raffaele ( 55 N.Y.2d 234, 240), "where defendant has by his plea admitted commission of the crime with which he was charged, his plea renders irrelevant his contention that the criminal proceedings preliminary to trial were infected with impropriety and error; his conviction rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial (People v Lynn, 28 N.Y.2d 196, 201)." A guilty plea is itself a conviction and all that remains is to give judgment and determine punishment (see, Boykin v Alabama, 395 U.S. 238, 242). By pleading guilty, a defendant indicates his intent not to litigate the question of his guilt and surrenders his constitutional rights to confrontation and trial by jury and his privilege against self-incrimination (see, People v Taylor, 65 N.Y.2d 1, 5; People v Lynn, supra, at 201-202). The purpose of the plea is to end the criminal case and it is not meant to serve as a "gateway" to additional litigation (see, People v Prescott, 66 N.Y.2d 216, 219, supra; People v Taylor, supra, at 5).
Defendant chose not to go to trial and thereafter challenge the constitutional sufficiency of the jury selection, but rather accepted a plea bargain, thus "eliminating the risks of conviction on a greater charge or more severe sentence" (People v Prescott, supra, at 220). Defendant's Batson rights are no greater than his right to a jury trial itself, which, as previously stated, is waived by a guilty plea (see, Duncan v Louisiana, 391 U.S. 145). Defendant's Batson claim is thus subsumed within the waiver of his right to a trial and does not survive his guilty plea (see generally, People v Dwight S., 29 N.Y.2d 172, supra, People v Siciliano, 40 N.Y.2d 996, supra; People v Di Raffaele, 55 N.Y.2d 234, supra; People v Rodriguez, 55 N.Y.2d 776, supra). Defendant's unilateral attempt to preserve this issue at trial is insufficient to evade the consequences of his guilty plea (see, People v Mack, 53 N.Y.2d 803, 806).
Defendant also contends that his Batson motion should be treated in the same manner as the denial of a suppression motion, which survives the plea. This contention is without merit because defendant's right to challenge a suppression ruling after pleading guilty is a specific exception created by statute (CPL 710.70) that should not be judicially expanded (see, People v Thomas, 53 N.Y.2d 338, 343-344, supra).
A different result is not mandated by this court's recent decision in People v Mitchell ( 145 A.D.2d 967). In Mitchell we held that defendant's waiver of a jury trial was not voluntary, but rather was compelled by defendant's belief that he could not receive a fair trial from the all white jury which resulted from the prosecutor's purposeful discrimination in exercising a peremptory challenge to exclude the sole black juror. Defendant in Mitchell denied his guilt and objected only to the mode of trial. In the present case, by pleading guilty defendant knowingly and voluntarily conceded the question of his guilt and waived his right to a trial in exchange for the benefit gained from the plea bargain. We have reviewed defendant's other contentions and find them to be without merit.
Accordingly, the judgment of conviction should be affirmed.
CALLAHAN, J.P., DENMAN and PINE, JJ., concur.
Judgment unanimously affirmed.