Opinion
June 30, 1994
Appeal from the Clinton County Court, Charles H. Lewis, J.
Timothy J. Lawliss, Plattsburgh, for appellant.
Penelope D. Clute, District Attorney of Clinton County, Plattsburgh (Catherine M. Paul of counsel), for respondent.
The police investigation of a series of suspicious fires in Clinton County led to defendant, who willingly accompanied Detective James Leonard to the City of Plattsburgh Police Station. Upon arrival, defendant was placed in an interview room and given his Miranda rights. He then provided Leonard with incriminating oral and written statements. Defendant was arrested and subsequently indicted for various arson-related offenses. In the course of the pretrial proceedings, defendant moved to suppress his incriminating statements and served a "Notice of Intent to Proffer Psychiatric Evidence" pursuant to CPL 250.10. Following a Huntley hearing, County Court denied defendant's motion insofar as it related to his written statement but precluded the People from introducing defendant's oral statement due to the failure to serve a timely CPL 710.30 notice. Trial was then scheduled for April 20, 1993.
On April 17, 1993, an Assistant District Attorney, without court approval or notice to defendant's counsel, arranged to have a psychiatrist interview defendant in the County Jail. When defendant's counsel learned of this, he moved for a dismissal of the indictment and/or the appointment of a special prosecutor. Although County Court denied both motions, it did preclude the People from offering any testimony with regard to the psychiatric interview. Thereafter, defendant entered a guilty plea to the indictment and was sentenced in accordance with the terms of a plea bargain. Defendant now appeals.
The initial issue to be resolved is whether by entering a guilty plea defendant waived appellate review of his arguments regarding the improper psychiatric interview. It is well established that, with limited exceptions, a guilty plea is "`not a gateway to further litigation'" but rather marks the end of a criminal proceeding (People v. Green, 75 N.Y.2d 902, 904, cert denied 498 U.S. 860, quoting People v. Taylor, 65 N.Y.2d 1, 5). Consequently, even though the right to have counsel present at a psychiatric interview is of constitutional dimensions (see, People v. Perkins, 166 A.D.2d 737, 739, lv denied 76 N.Y.2d 1023), that does not necessarily preclude a surrender of such right by a guilty plea (see, People v. Green, 146 A.D.2d 281, 283, affd 75 N.Y.2d 902, cert denied 498 U.S. 860, supra). Therefore, inasmuch as the presence of counsel at a psychiatric examination is solely for the purpose of making more effective the right of cross-examination of the expert witness (see, Matter of Lee v County Ct., 27 N.Y.2d 432, 444, cert denied 404 U.S. 823) and as the right of cross-examination is encompassed within the right of confrontation (see, Pointer v. Texas, 380 U.S. 400), we conclude that the right to have counsel present at psychiatric examination does not survive a guilty plea (see, People v. Taylor, supra). We further conclude that, because a motion to disqualify a District Attorney and appoint a special prosecutor is a nonjurisdictional claim, defendant waived appellate review of this claim (see, People v. Cole, 152 A.D.2d 851, 853, lv denied 74 N.Y.2d 895).
Defendant next contends that County Court should have suppressed his written confession because it was induced by a promise. This claim is predicated upon the fact that, as Leonard was preparing to take defendant's written statement, defendant asked him "no one's going to hear about this, are they?", to which Leonard replied "not by me". The record shows that this statement was made after defendant had orally admitted setting the fires and after Leonard had told defendant that he was going to be brought before a Judge on the charges. As it is evident from the record that Leonard's remarks created no fundamental unfairness which denied due process and did not induce defendant to give a false confession, we find that his written confession was voluntary (see, People v. Tarsia, 50 N.Y.2d 1, 11; People v Jordan, 193 A.D.2d 890, lv denied 82 N.Y.2d 756; People v. Esposito, 191 A.D.2d 746, lv denied 81 N.Y.2d 885).
Therefore, for these reasons, we affirm.
CARDONA, P.J., MIKOLL, WEISS and PETERS, JJ., concur.
Ordered that the judgment is affirmed.