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Court Discusses Effect of a Defendant Waving their Right to Appeal upon a Plea of Guilty


The defendant was arrested while in an automobile after a violating his parole. The defendant was searched along with his automobile was searched where a pistol, ammunition and a hypodermic needle were recovered in the vehicle and glassine envelopes containing heroin and cocaine was found on the defendant’s person. The police also obtained a warrant to search the defendant’s apartment where drugs and drug paraphernalia were seized. The defendant was read his Miranda rights and made several incriminating statements thereafter. The defendant then requested to suppress his confession and the evidence seized from his apartment and his person. The hearing concluded that the evidence found in his apartment was to be suppressed but the requesting to suppress the evidence found on his person was denied. The defendant also requested that the charge of commission of the crime of criminal possession of a controlled substance in the fourth degree be dismissed but the request was denied. The defendant thereafter pled guilty to the charged and was sentence to a term of 4 to 8 years imprisonment. The defendant then appealed the conviction.

The first ground for the reversal of the conviction was that police failed to ascertain whether he was represented by a New York City Criminal Lawyer before interrogating him because of his outstanding charge according to People v. Bartolomeo, 53 N.Y.2d. As a result, the defendant asserted that the statements made during interrogation should have been suppressed. The Appellate Division of the Supreme Court held that the argument was baseless because the policed denied having knowledge of the outstanding charge as there was no evidence of the charge in his record. Further, the defendant during his suppression failed to mention that he was not represented by a New York City Criminal Attorney on an unrelated charge at time of his arrest. The principle in the People v. Bartolomeo, could only be used when the when it was known that the defendant was unrepresented in a previous charge either from the record or from the defendant’s own admission. Therefore, the conviction could not be dismissed on this ground because there was no evidence that the defendant was unrepresented on the unrelated charge.

Secondly, the defendant held that the conviction should be reversed because the he did not possess substances that contained more than one eighth of an ounce of a narcotic drug. The defendant with the aid of the laboratory report published by the State Police showed that the cocaine and heroin seized each contained less than one eighth of an ounce which was in violation of section 220.09(1) of the Penal Law. The defendant stated that the literal definition should be used that a person was only guilty of commission of the crime of criminal possession of a controlled substance in the fourth degree where there was at least one eighth of an ounce of a single narcotic drug, not a combination of such drugs. However, the court could not review his contention because the conviction could not be reviewed as a result of his guilty plea to the charge. An appellate review of pleading deficiencies in an indictment was precluded by guilty plea unless defect was jurisdictional, that is, failure to effectively to charge the defendant with the commission of the crime. Any pleading defect arising from the aggregation of weight of heroin and cocaine seized from defendant, for charge of criminal possession of controlled substance in fourth-degree charge, was not jurisdictional; therefore, the appellate review was precluded by defendant’s plea of guilty to charge to review the matter.

A New York City Criminal Attorney can assist with any matter associated with possession of a controlled substance. A New York City Lawyer knows how to act in your best interest to ensure that you do not waive your right to appeal. At Stephen Bilkis & Associates, we offer excellent legal services to assist you with your legal problems to achieve the best results. Our offices are conveniently located throughout New York City and we offer free consultations.

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