People v. Whittaker
Docket 2024-08376
Court of record · Indexed in NoticeRegistry archive · AI-enriched for research
- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Criminal Appeal
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02423
- Docket
- 2024-08376
Appeal from a County Court judgment convicting defendant upon a guilty plea and imposing sentence
Summary
The Appellate Division, Second Department affirmed the County Court judgment convicting Brian Whittaker, who pleaded guilty to first-degree reckless endangerment and criminal possession of a firearm and was sentenced. The court held Whittaker validly, knowingly, and voluntarily waived his appellate rights and his written waiver of prosecution by indictment was valid. Although he argued the plea allocution was factually insufficient and thus involuntary, that claim was unpreserved and without merit because the allocution demonstrated he understood the charges and knowingly entered the plea.
Issues Decided
- Whether the defendant validly waived his right to appeal
- Whether the plea allocution was factually sufficient to support a knowing and voluntary plea
- Whether the defendant validly waived prosecution by indictment
Court's Reasoning
The court found the record showed the defendant knowingly, voluntarily, and intelligently waived his right to appeal, which barred review of his challenge to the factual sufficiency of the plea allocution. The claim that a deficient allocution rendered the plea involuntary survived waiver but was unpreserved because the defendant did not move to withdraw the plea or raise the issue below. The written waiver of indictment, signed in open court and after consultation with counsel, established the waiver was knowing and voluntary.
Authorities Cited
- People v Lopez6 NY3d 248; cited also 71 NY2d 662
- People v Goldstein12 NY3d 295
- CPL 195.20
Parties
- Appellant
- Brian Whittaker
- Respondent
- The People of the State of New York
- Judge
- Evan Inlaw
- Judge
- Lara J. Genovesi
Key Dates
- Decision date
- 2026-04-22
- County Court judgment date
- 2024-07-23
What You Should Do Next
- 1
Consider post-conviction relief options
If grounds exist (for example, ineffective assistance of counsel or newly discovered evidence), consult counsel about motions under CPL 440.10 or federal habeas options where applicable.
- 2
Request leave to appeal to higher court
If appropriate, consult counsel about applying for permission to appeal to the Court of Appeals, noting the preservation and waiver issues discussed by the Appellate Division.
- 3
Discuss sentencing or parole consequences with counsel
Review sentence credit, parole eligibility, and any post-sentencing relief or administrative remedies with an attorney to protect rights going forward.
Frequently Asked Questions
- What did the court decide?
- The appellate court affirmed the conviction and sentence because the defendant validly waived his right to appeal and the plea and waiver of indictment were knowing and voluntary.
- Who is affected by this decision?
- Defendant Brian Whittaker is directly affected; the People’s conviction and sentence were upheld.
- Could the defendant challenge the plea now?
- The court noted the defendant did not preserve the claim that the plea was involuntary by moving to withdraw it in the trial court, making appellate review unavailable on that ground.
- Did the defendant give up the right to be prosecuted by indictment?
- Yes; the record shows he signed a written waiver of indictment in open court after consulting with counsel, and the court found that waiver valid.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
People v Whittaker - 2026 NY Slip Op 02423 People v Whittaker 2026 NY Slip Op 02423 April 22, 2026 Appellate Division, Second Department The People of the State of New York, respondent, v Brian Whittaker, appellant. (S.C.I. No. 70343/24) Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on April 22, 2026 2024-08376 Lara J. Genovesi, J.P. Cheryl E. Chambers Helen Voutsinas Phillip Hom, JJ. Gary E. Eisenberg, New City, NY, for appellant. Susan Cacace, District Attorney, White Plains, NY (William C. Milaccio and Steven A. Bender of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Westchester County (Evan Inlaw, J.), rendered July 23, 2024, convicting him of reckless endangerment in the first degree and criminal possession of a firearm, upon his plea of guilty, and imposing sentence. ORDERED that the judgment is affirmed. The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal ( see People v Lopez , 6 NY3d 248, 256; People v Batista , 167 AD3d 69, 76-78). The defendant's valid waiver of his right to appeal precludes appellate review of his challenge to the factual sufficiency of the plea allocution ( see People v Heath , 218 AD3d 693, 694; People v Headley , 197 AD3d 1329, 1330). To the extent that the defendant contends that the factual insufficiency of the plea allocution rendered his plea involuntary and unintelligent, this contention survives a valid waiver of the right to appeal ( see People v Prenaj , 239 AD3d 1001, 1001; People v Javiel , 231 AD3d 967, 967). However, the contention is unpreserved for appellate review, as the defendant did not move to withdraw his plea or otherwise raise this issue before the County Court ( see CPL 470.05[2]; People v Lopez , 71 NY2d 662, 663; People v Escobargarcia , 237 AD3d 1221, 1222). The exception to the preservation requirement does not apply in this case, because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea ( see People v Lopez , 71 NY2d at 666). In any event, the plea allocution was sufficient. "[A]n allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime," and a plea allocution is sufficient if it "shows that the defendant understood the charges and made an intelligent decision to enter a plea" ( People v Goldstein , 12 NY3d 295, 301; see People v Javiel , 231 AD3d at 967). Here, the record demonstrates that the defendant understood the charges and made a voluntary and intelligent decision to enter the plea. The defendant's valid waiver of his right to appeal does not preclude appellate review of his contention that he did not knowingly, voluntarily, and intelligently waive his right to be prosecuted by indictment ( see People v Okay , 172 AD3d 1104, 1105; People v Cardona-Velasquez , 152 AD3d 618, 618). However, the contention is without merit. The record discloses that the defendant signed a valid written waiver of indictment in open court and in the presence of his attorney ( see NY Const, art I, § 6; CPL 195.20; People v Cardona-Velasquez , 152 AD3d at 618), and there is no "record evidence suggesting that [the] defendant's waiver was involuntary, unknowing or unintelligent" ( People v Myers , 32 NY3d 18, 23). The defendant's contentions that he did not have adequate time to review the waiver of indictment and that he did not understand what he was signing are "belied by the record" ( People v Okay , 172 AD3d at 1105), as the defendant expressly acknowledged that he had an opportunity to read and discuss the waiver of indictment with his attorney before signing it and that he understood the contents of the written waiver ( see People v Giddens , 172 AD3d 1402, 1402; People v Hickson , 165 AD3d 1166, 1167). GENOVESI, J.P., CHAMBERS, VOUTSINAS and HOM, JJ., concur. ENTER: Darrell M. Joseph