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DEFENDANT’S MOTION TO WITHDRAW HIS PLEA, AND THE CIRCUMSTANCES SURROUNDING HIS ACCEPTANCE OF THE PLEA OFFER, RAISED THE POSSIBILITY THAT DEFENDANT ACCEPTED THE PLEA OFFER TO MAKE SURE HIS BAIL WOULD NOT BE INCREASED; DEFENDANT WAS WORRIED ABOUT BEING ABLE TO FIND CARE FOR HIS THREE-YEAR-OLD SON; BAIL SHOULD NOT BE A CONSIDERATION IN PLEA NEGOTIATIONS; THE MOTION TO WITHDRAW THE PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FIRST DEPT).

The Second Department, reversing County Court, determined it was an abuse of discretion to deny defendant’s motion to withdraw his plea without holding a hearing. The matter was remitted for a hearing. The defendant was given a “last chance” to accept a plea offer just before the suppression hearing began. Defense counsel asked about bail at that time and then defendant met with defense counsel before deciding to take the plea offer. In his motion to withdraw the plea, defendant alleged that, based upon his discussion with defense counsel, he thought his bail would be substantially increased if he didn’t take the plea offer and was concerned about taking care of his three-year-old son. He had brought his son  to court because he couldn’t find a babysitter:

Bail status “has no legitimate connection to the mutuality of advantage underlying plea bargaining because it does not relate either to the more lenient sentence for which the defendant is negotiating or to the waiver of trial and the certainty of conviction the prosecution is seeking” … . Accordingly, “[t]he prospect of an immediate change in bail status, therefore, is an inappropriate consideration in plea negotiations” … .

Here, the plea bargaining process and the defendant’s affidavit raise a legitimate question as to the voluntariness of the defendant’s plea and, therefore, the defendant’s motion should not have been denied without a hearing … . The County Court’s response to defense counsel’s questions regarding bail, which included a statement that this was the defendant’s “last chance” to accept the offer, raise a legitimate question as to whether the defendant understood that the court’s purportedly forthcoming bail decision was contingent on acceptance of the offer. Notably, after the defendant accepted the plea, the court never brought up the issue of changing the defendant’s bail status, effectively continuing his release on cash bail without any changes … .  People v Swain, 2021 NY Slip Op 01430, Second Dept 3-10-21

 

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