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Harmless Error Rule Should Not Have Been Applied to Guilty Plea

In a full-fledged opinion by Judge Graffeo, the Court of Appeals, over a dissent, declined to apply the harmless error rule to a guilty plea.  In this driving-while-intoxicated case, the defendant moved to suppress an open bottle of rum and a crack pipe which were found in the car he was driving during an inventory search. The motion was denied. Defendant told the court he wanted to plead guilty because he “was not planning to go to trial if [he] got a negative ruling” on the motion.  On appeal, the inventory search was deemed invalid, but the Appellate Division ruled the error “harmless.”  In reversing, the Court of Appeals wrote:

The harmless error rule was “formulated to review trial verdicts” (People v Grant, 45 NY2d at 378).  It requires an appellate court to assess the quantum and nature of the People’s proof of guilt independent of erroneously admitted evidence and the causal effect, if any, that the introduction of that evidence had on the fact finder’s verdict … .  Harmless error therefore can be “difficult to apply to guilty pleas” — especially in cases involving “an improper denial of a pretrial motion to suppress” — since “a defendant’s decision to plead guilty may be based on any factor inside or outside the record” (People v Grant, 45 NY2d at 378379).  Consequently, convictions premised on invalid guilty pleas generally are not amenable to harmless error review (see id.).

The Grant doctrine is not absolute, however, and we have recognized that a guilty plea entered after an improper court ruling may be upheld if there is no “reasonable possibility that the error contributed to the plea” (id. at 379).  Although a failure to suppress evidence may detrimentally influence a defendant’s plea negotiations, a concession of guilt may be treated as valid if the defendant articulates a reason for it that is independent of the incorrect pre-plea court ruling (see id. at 379-380) or an appellate court is satisfied that the decision to accept responsibility “was not influenced” by the error… . * * *

Certainly, there may be instances where the failure to grant suppression does not affect a defendant’s decision to plead guilty because the challenged proof is cumulative or too trivial.  In this case, however, the denial of the motion to suppress could not be viewed as harmless and the guilty plea must be vacated. People v Wells, 188, CtApp 11-14-13

 

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Test for Sufficiency of Evidence of Accessorial Liability Is Same As Test for Sufficiency of Circumstantial Evidence

The Second Department upheld Family Court’s juvenile delinquency finding and explained the burden of proof.  The appellant argued on appeal that, although he was present at the robbery, there was insufficient proof he participated in it:

“The evidence supporting a fact-finding in a juvenile delinquency proceeding is legally sufficient if, viewing that evidence in the light most favorable to the presentment agency, any rational trier of fact could have found the appellant’s commission of all the elements of the charged crimes beyond a reasonable doubt” … . The test is no different when the evidence supporting the fact-finding is circumstantial … . Although “[a] person’s mere presence at the scene of the crime, even with knowledge of its perpetration, cannot render him or her accessorially liable for the underlying criminal conduct” …, the complainant’s testimony in this case, when viewed in the light most favorable to the presentment agency, established the appellant’s active participation in the incident. Accordingly, the evidence was legally sufficient … . Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence …, we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor … . Upon reviewing the record, we are satisfied that the Family Court’s fact-finding determination was not against the weight of the evidence (see Family Ct Act § 342.2[2]…).  Matter of Chakelton M, 2013 NY Slip Op 07484, 2nd Dept 11-13-13

 

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Valid Waiver of Appeal Does Not Preclude Review of Whether Ineffective Assistance Affected Voluntariness of Plea

The Second Department noted that a valid waiver of appeal precludes review of the factual sufficiency of a plea allocution, but does not preclude review of a claim of ineffective assistance where the voluntariness of the plea may have been affected:

The defendant’s valid waiver of his right to appeal precludes review of his challenge to the factual sufficiency of his plea allocution … . While the valid waiver of his right to appeal would typically preclude review of the defendant’s claim that he was deprived of his right to effective assistance of counsel, here, the defendant claims that the alleged ineffective assistance may have affected the voluntariness of his plea, and, as such, his claim is reviewable … . Nevertheless, contrary to the defendant’s contention, his attorney provided him with meaningful representation … . Moreover, the Supreme Court providently exercised its discretion in denying the defendant’s motion to withdraw his guilty plea … . People v Milton, 2013 NY Slip Op 07507, 2nd Dept 11-13-13

 

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Unpreserved Erroneous Denial of Challenge to Juror Required Reversal

The Second Department, in the interest of justice, reversed defendant’s conviction based on the trial court’s (unpreserved) error in denying defense counsel’s challenge to a juror for cause.  (Defense counsel did not challenge the juror on the specific ground raise on appeal):

Here, during voir dire, a prospective juror stated, “[j]ust my upbringing tells me that the police saw fit to arrest and the District Attorney saw fit to prosecute, so that automatically renders my opinion.” The prospective juror never unequivocally stated that his prior state of mind regarding the police and the District Attorney would not influence his verdict, and that he would render an impartial verdict based solely on the evidence. His responses as a whole showed that there was doubt as to his ability to be impartial. Therefore, the trial court erred in denying defense counsel’s application to discharge this prospective juror for cause … . Because defense counsel exercised a peremptory challenge against this prospective juror, and also exhausted his allotment of peremptory challenges, this error cannot be considered harmless … . People v Campbell, 2013 NY Slip Op 07500, 2nd Dept 11-13-13

 

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People Could Not Appeal Judge’s Vacation of Defendant’s Conviction and Sentencing as a Youthful Offender—No Statute Allows Such an Appeal

In dismissing the People’s appeal, the Second Department explained that there was no statutory right for an appeal of the judge’s vacating defendant’s conviction and sentencing defendant as a youthful offender.  The only vehicle for the People was an article 78 prohibition proceeding:”

The Criminal Procedure Law expressly enumerates and describes the orders appealable by the People to the Appellate Division in a criminal case (see CPL 450.20…), and “[n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute” … . As no statute authorizes an appeal by the People to the Appellate Division from an order, in effect, vacating a conviction and adjudicating a defendant a youthful offender (see CPL 450.20), the People’s appeal must be dismissed …. The proper vehicle for challenging the Supreme Court’s determination is a CPLR article 78 proceeding in the nature of prohibition… . People v Tony C, 2013 NY Slip Op 07055, 2nd Dept 10-30-13

 

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Anders Brief Rejected

In finding an “Anders” brief insufficient, the Second Department wrote:

The brief submitted by the appellant’s assigned counsel pursuant to Anders v California (386 US 738) is deficient because it fails to adequately recite the underlying facts in the case and analyze potential appellate issues or highlight facts in the record that might arguably support the appeal … . Since the brief does not demonstrate that assigned counsel acted “as an active advocate on behalf of his . . . client” …, we must assign new counsel to represent the appellant… . People v Francis, 2013 NY Slip Op 07058, 2nd Dept 10-30-13

 

Judge’s Failure to Comply with CPL Re: Response to Jury Note Required Reversal

The Second Department held that the trial court’s failure to comply with Criminal Procedure Law 310.10 with respect to responding to a note from the jury concerning accomplice liability required reversal (despite the absence of an objection):

A new trial is required due to the trial court’s failure to meaningfully comply with CPL 310.10. During deliberations, the jury sent four notes to the trial court. The record reflects that, on the fourth occasion, the court did not disclose the contents of the note to the prosecutor and defense counsel until serially reading, and immediately responding to, the questions contained therein in the presence of the jury. All three of the questions in this note concerned the subject of accomplice liability.

The jury’s requests for further explanation of the meaning of accomplice liability within the context of this case required a “substantive response”, rather than a merely “ministerial” one … . As such, the trial court’s failure to afford defense counsel “the opportunity to provide suggestions” … regarding the court’s responses to the jury’s questions constituted “a mode of proceedings error . . . requiring reversal” …, despite defense counsel’s failure to object to the trial court’s handling of the jury’s fourth note … .  People v Gadson, 2013 NY Slip Op 07059, 2nd Dept 10-30-13

 

Plea Allocution Insufficient—Plea Vacated in Absence of Motion to Withdraw or Vacate

The Third Department determined defendant’s guilty plea was invalid (based on the allocution) and vacated it in the absence of a motion to withdraw the plea or vacate the judgment of conviction:

As the record before us does not indicate that defendant ever actually entered a guilty plea pursuant to the plea agreement, we reverse.   While defense counsel indicated that it was defendant’s “intent[]” to do so, after County Court had recited the terms of the plea agreement, which defendant indicated he had “heard,” defendant never actually admitted his guilt in any manner and did not enter a valid plea.  The plea allocution simply does not reflect that defendant “understood the nature of the charge against him . . . and voluntarily entered into such plea” .. .  Further, while defendant “was not required to recite the elements of his crime or engage in a factual exposition,” County Court did not pose any questions, read the count of the indictment, or explain the crime (or its elements) to which he was entering a plea, so as to “establish the elements of the crime” … ; nor did defendant provide “unequivocal . . . responses” or “indicate[] that he was entering the plea because he was, in fact, guilty” … .

While defendant did not move to withdraw the plea (and we have no indication on this record that defendant moved to vacate the judgment of conviction) so as to preserve his challenge to the factual sufficiency of the plea allocution … , we find it appropriate to exercise our interest of justice jurisdiction and reverse given, in part, that defense counsel may have been dissuaded from making such a motion by County Court’s advisement to defendant during the plea colloquy that if he violated the conditions of his release he “will not be permitted to withdraw [his] plea of guilty.”  Thus, we find that the plea was invalid. People v Beniquez, 104692, 3rd Dept 10-17-13

 

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Assignment of Counsel Required Before Determining Whether Appeal Should Be Dismissed as Untimely

The Court of Appeals determined the appellate division was required to assign counsel upon a showing of indigency before ruling on whether defendant’s first-tier appeal as of right should be dismissed for failure to meet the timeliness requirement in the 2nd Department’s rules:

In this case, the Appellate Division erroneously failed to assign counsel to represent defendant before dismissing his first-tier appeal as of right based on his failure to timely perfect it.  Notwithstanding the Appellate Division’s rule mandating automatic dismissal of an untimely perfected appeal (see 22 NYCRR 670.8 [f]), its decision to dismiss the appeal here remained a discretionary determination on the merits of a threshold issue on defendant’s first-tier And an appellate court had not yet passed on, nor had counsel presented, defendant’s appellate claims with respect to dismissal or any other matter, thus leaving defendant ill equipped to represent himself. Because the factors cited in Douglas [372 US 387], Halbert [545 US 605] and Taveras [463 F3d 141], are present in the instant case, the Appellate Division was required to assign defendant an attorney upon a showing of indigence in order to enable him to oppose the court’s motion to dismiss his first-tier appeal as of right, and the court’s failure to appoint counsel to represent defendant without considering his indigency or the merits of dismissal warrants reversal and reinstatement of defendant’s appeal.  Upon remittal to the Appellate Division, that court should decide whether defendant is indigent pursuant to CPLR 1101.  If defendant establishes his indigence, the court must assign counsel to litigate the dismissal motion, and the court should determine, in its discretion, whether dismissal is appropriate. appeal, rather than an automatic bar to appeal … . People v Kordish, 252, CtApp 10-17-2013

 

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Waiver of Appeal Not Effective

In finding the defendant did not effectively waive his right to appeal, the Second Department explained:

…[T]he record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The defendant’s purported waiver of the right to appeal is unenforceable, as the record does not indicate that he had ” a full appreciation of the consequences'” of such waiver … . While the defendant signed a written waiver, a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” … . Accordingly, in the absence of a knowing, voluntary, and intelligent waiver of the right to appeal, the defendant retained his right to challenge the denial of that branch of his omnibus motion which was to suppress identification testimony… . People v Crawford, 2013 NY Slip Op 06705, 2nd Dept 10-16-13

 

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