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Conditioning Co-Defendant’s Plea on a Promise Not to Testify in Defendant’s Trial Is a Denial of the Right to Present a Defense

Although the Fourth Department affirmed defendant’s conviction, the court agreed with the defendant that the People improperly conditioned co-defendant’s plea upon his promise not to testify at defendant’s trial and threatened to increase the co-defendant’s sentence if he did testify.  The trial court eliminated the problem by permitting the co-defendant to testify without exposure to a more severe sentence:

We agree with defendant that it was improper for the People to condition the plea of a codefendant upon his promise not to testify at defendant’s trial and to threaten to increase the codefendant’s sentence should he violate that condition ….. As the United States Supreme Court wrote in Washington v Texas (388 US 14, 19), “[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he [or she] has the right to present his [or her] own witnesses to establish a defense. This right is a fundamental element of due process of law.” Thus, “substantial interference by the State with a defense witness’ free and unhampered choice to testify violates due process as surely as does a willful withholding of evidence” … . Here, however, defendant was not prejudiced by the improper plea condition inasmuch as the court granted his motion to permit the codefendant to testify on defendant’s behalf without exposure to a more severe sentence, and the court advised the codefendant of its ruling …. . People v Whitfield, 99, 4th Dept 3-21-14

 

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Court Should Have Granted a Hearing on Defendant’s Motion to Vacate His Conviction on Ineffective-Assistance Grounds

The Fourth Department determined defendant’s 440 motion to vacate his conviction should not have been denied without a hearing:

Defendant’s submissions “tend[ ] to substantiate all the essential facts” necessary to support his claim of ineffective assistance of counsel (CPL 440.30 [4] [b]). Moreover, his allegations are not contradicted by a court record and are supported by other affidavits, and “it cannot be said that ‘there is no reasonable possibility that [they are] true’ ” …   Specifically, defendant averred that defense counsel advised him that, if he pleaded guilty and cooperated with the District Attorney’s office in its investigation of other criminal matters, he would receive a sentence of no more than five years of incarceration.  Three other people averred that defense counsel told defendant’s fiancé, mother and father that defendant would receive “no more than” a five-year sentence.  At the time of the plea, the court informed defendant that the agreed-upon sentence was a term of incarceration of 10 years, but noted that it would approve a lesser sentence if one were recommended by the People “based upon any cooperation [from defendant that the People] deem[ed] satisfactory and helpful.”  After defendant met with representatives of the District Attorney’s office to fulfill his obligation under the cooperation agreement, the court sentenced him to a term of incarceration of 10 years.  According to defendant, defense counsel miscommunicated to him the level of cooperation necessary for the People to recommend a lesser sentence and misled him concerning what his sentence would be if he entered a plea to the indictment. The affidavits submitted by defendant in support of the motion raise factual issues that require a hearing … .  People v Hill, 108, 4th Dept 2-7-14

 

Waiver of Indictment and Guilty Plea Invalid—Superior Court Information Charged a Greater Offense than that Charged in the Original Misdemeanor Information

The Third Department determined defendant’s conviction must be reversed because the superior court information to which defendant pled guilty charged a greater offense (conspiracy fourth degree) than was charged in the misdemeanor complaint (criminal solicitation fourth degree).  In addition, because the defendant’s guilty plea to another offense (criminal sexual act first degree) was induced by the court’s promise of a lesser sentence to run concurrently with the overturned conspiracy sentence, the sexual act plea must be vacated.  With respect to the invalid superior court information, the court wrote:

In New York, felony charges must be prosecuted by indictment, unless a defendant “held for the action of a grand jury upon a charge for such an offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, . . . waive[s] indictment by a grand jury and consent[s] to be prosecuted on an information filed by the district attorney” (NY Const, art I, § 6; see CPL 195.10 [1]).  Where an indictment waiver has been secured, however, the People may not charge in a superior court information a “‘greater offense[], which [has] additional aggravating elements'” … .  This is precisely what occurred here.  The misdemeanor complaint charged defendant with criminal solicitation in the fourth degree and the superior court information impermissibly charged the greater offense of conspiracy in the fourth degree.  Inasmuch as the improper inclusion of a greater offense is a jurisdictional infirmity …, notwithstanding defendant’s appeal waiver and plea, we must reverse his conviction of conspiracy in the fourth degree and dismiss the superior court information… . People v Price, 2014 NY Slip Op 00140 [113 AD3d 883] 3rd Dept 1-9-14

 

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Defendant Entitled to a Hearing on His Motion to Vacate His Conviction/Defendant Alleged He Would Not Have Pled Guilty Absent His Attorney’s Affirmative Misinformation About the Deportation Consequences of the Plea

The Third Department, in a full-fledged opinion by Justice Spain, determined defendant was entitled to a hearing on his motion to vacate his conviction based on the allegation defense counsel gave defendant affirmative misinformation about the deportation consequences of his guilty plea:

Defendant’s motion to vacate sufficiently raises a question as to whether trial counsel provided him with affirmative misinformation regarding the deportation consequences of his guilty plea and adequately alleges facts that, if credited, show a reasonable probability that, but for counsel’s erroneous assurances in this regard, defendant would have insisted on going to trial … . Accordingly, defendant is entitled to a hearing on the issues raised in his CPL 440.10 (1) (h) motion and the order must, therefore, be reversed… . People v Diallo, 104609, 3rd Dept 12-19-13

 

 

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No Preservation Required to Review Validity of Guilty Plea and Immediate Sentencing In Absence of the Waiver of the Rights to a Jury Trial, to Confront Witnesses and to Avoid Self-Incrimination

In a full-fledged opinion by Judge Graffeo, the Court of Appeals reversed two convictions because the defendant entered a guilty plea and was immediately sentenced without any discussion of the “Boykin” rights waived by the plea (trial by jury, confront accusers, avoid self-incrimination). The court determined that, under the facts, it was not possible or practical to preserve the error by motion:

…[I]n Lopez we carved out a narrow exception to the preservation requirement for the “rare case” in which “the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea” (Lopez, 71 NY2d at 666).  We also recognized a limited exception in Louree, concluding that a defendant can raise a …claim on direct appeal because of “the actual or practical unavailability of either a motion to withdraw the plea” or a “motion to vacate the judgment of conviction” (Louree, 8 NY3d at 546; …).

Here, whether we characterize these cases as falling within the Lopez/Louree exception or treat defendant’s claims as implicating rights of a constitutional dimension directed to the heart of the proceedings — i.e., a mode of proceedings error for which preservation is not required — defendant’s Boykin claims are reviewable on direct appeal. People v Tyrell, 230, 231, CtApp 12-12-13

 

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Defendant Entitled to New Counsel After Defense Attorney Took a Position Adverse to Defendant’s Pro Se Motion to Withdraw Guilty Plea

The Third Department determined defendant should have been provided with new counsel after defense counsel took a position adverse to defendant’s pro se motion to withdraw his guilty plea:

We agree with defendant’s contention that he should have been assigned new counsel to pursue his motion to withdraw the guilty plea because his counsel was essentially called as a witness against him.  While defense counsel is not required to support a pro se motion to withdraw a guilty plea, counsel “may not take a position . . . that is adverse to the defendant” … .  Doing so creates an actual conflict of interest that requires the trial court to assign a new attorney to represent the defendant on the motion … .

Here, defendant claimed that defense counsel coerced him into entering the guilty plea by failing to communicate with him, telling him that he did not want to represent him and that he had to take the offer “or that’s it.”  Defendant claimed that he was unprepared for any pretrial proceedings based on the lack of communication and felt that he had to take the plea to “get away” from counsel and avoid having to go to trial with him.  Defense counsel specifically refuted defendant’s assertions and, in response to County Court’s questioning, provided detailed information as to the discussions he had with defendant about the case and his options.  In response, defendant claimed that counsel’s statements were untruthful.  Given that defense counsel took a position adverse to defendant’s claim of coercion, County Court should have assigned new counsel to pursue defendant’s motion to withdraw his plea… . People v Zaorski, 103901, 3rd Dept 11-21-13

 

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Plea Allocution Negated Essential Element of Offense/Error, though Unpreserved, Required Reversal

The Court of Appeals reversed defendant’s conviction because the plea colloquy negated an essential element of the offense.  The defendant pled guilty to rape 3rd (Penal Law 130.25(3)), the so-called “date rape” statute. The statute requires a lack of consent by the victim, not a lack of capacity to consent (caused by drugs, for example). The plea allocution indicated only a lack of capacity to consent.  Even though the error was not preserved, the Court of Appeals determined the case fell within the narrow exception to the preservation requirement recognized in Lopez (71 NY2d at 666) where the court fails to ensure the guilty plea is knowing and voluntary:

Penal Law § 130.25 (3) addresses “so-called date rape or acquaintance rape situations [where] there [might] be consent to various acts leading up to the sexual act, but at the time of the act, the victim clearly says no or otherwise expresses a lack of consent” … .  Accordingly, the statutory provision requires the victim to have “clearly expresse[d] an unwillingness to engage in the sexual act in such a way that a neutral observer would have understood that the victim was not consenting” … .

Despite the statute’s plain terms, questions posed by the prosecutor during the brief colloquy indicate an intention to elicit from defendant that the complainant was unable to consent because she was incapacitated.  Moreover, the court’s single query during the factual allocution suggests that the court similarly misunderstood that key element of the crime.  In an apparent attempt to establish a causal relationship between thr complainant’s incapacity and her lack of consent, the court asked defendant, “[a]nd [the complainant] didn’t give you consent because she took too much medication and she has a mental illness, correct?”  By answering in the affirmative, defendant unequivocally negated an element of the crime to which he was pleading guilty.  People v Worden, 203, CtApp 11-21-13

 

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Defendant Who Was Not Informed His Guilty Plea Would Result in Deportation Was Unable to Demonstrate He Was Prejudiced by the Omission

The Court of Appeals, over a dissent, affirmed defendant’s conviction, in spite of his counsel’s failure to inform him his guilty plea would result in deportation. The court determined that, under the specific facts of the case, there was no “reasonable probability” defendant would not have entered a guilty plea had he been informed of the mandatory deportation:

Under the State and Federal Constitutions, a defendant has the right to the effective assistance of counsel (see US Const, 6th Amend; NY Const, art I, § 6…).  Under the Federal Constitution, defense counsel is ineffective when his or her performance “f[a]ll[s] below an objective standard of reasonableness” under “prevailing professional norms” (Strickland v Washington, 466 US 668, 687-688 [1984]).  Even if counsel’s performance is deficient, however, the defendant’s conviction will not be reversed unless “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (id. at 694-695).  In the plea context, the defendant “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial” … .  Whether the defendant can show such a “reasonable probability” will often turn, as it does here, on credibility determinations which, if they have support in the record, we cannot review… . * * *

…[W]e conclude that there is support for the lower courts’ determination that defendant failed to show a reasonable probability that, if counsel had informed him that he was certain to be deported as a result of his guilty plea, he would not have pleaded guilty and would have gone to trial… .  People v Hernandez, 211, CtApp 11-19-13

 

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Court’s Failure to Inform Defendant that Guilty Plea May Result in Deportation Violates Due Process/Vacation of Plea in Absence of Notification Not Automatic

In a full-fledged opinion by Judge Abdus-Salaam (with concurring and dissenting opinions), the Court of Appeals determined that all non-citizen defendants who plead guilty to a felony are entitled, under the Due Process clause, to notification that the plea may result in deportation, but that a failure to so notify does not automatically require vacation of the plea:

We … hold that due process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony.   In reaching this conclusion, we overrule the limited portion of our decision in People v Ford (86 NY2d 397 [1995]) which held that a court’s failure to advise a defendant of potential deportation never affects the validity of the defendant’s plea.

[We] further hold that, in light of the Court’s conclusion that a trial court must notify a pleading non-citizen defendant of the possibility of deportation, the trial court’s failure to provide such advice does not entitle the defendant to automatic withdrawal or vacatur of the plea.  Rather, to overturn his or her conviction, the defendant must establish the existence of a reasonable probability that, had the court warned the defendant of the possibility of deportation, he or she would have rejected the plea and opted to go to trial… .  People v Peque, et seq, 163, 164, 165, CtApp 11-19-13

 

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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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