The Second Department noted that a guilty plea forfeits all ineffective assistance claims except those related to the plea-bargaining:
…[T]o the extent that the defendant’s claim of ineffective assistance of counsel does not directly involve the plea-bargaining process, it was forfeited upon his plea of guilty …. People v Barrett, 2013 NY Slip Op 02410, 2011-04637, Ind No 1727/10, 2nd Dept 4-10-13
The appellate division determined the trial court had abused its discretion in discharging defendant’s attorney and that the issue had not been forfeited by defendant’s guilty plea. In affirming the appellate division, the Court of Appeals, in a full-fledged opinion by Judge Rivera, wrote:
Here, the claim to counsel is so deeply intertwined with the integrity of the process in Supreme Court that defendant’s guilty plea is no bar to appellate review. A claim that removal of counsel was part of the court’s disparate, unjustifiable treatment of defense counsel goes to the fundamental fairness of our system of justice. While the right to counsel of choice is qualified, and may cede, under certain circumstances, to concerns of the efficient administration of the criminal justice system, we have made clear that courts cannot arbitrarily interfere with the attorney-client relationship, and interference with that relationship for purpose of case management is not without limits, and is subject to scrutiny. People v Griffin, 46. CtApp, 4-2-13
At the time defendant pled guilty to conspiracy, his 6-12 year sentence was to run concurrently with previously imposed 41/2 to 9 sentences (for class B felonies) and his understanding was that his minimum time in prison would be extended by only a year and a half. Subsequently the B-felony convictions were reduced to three years under the Drug Law Reform Act. The defendant then moved to vacate the conspiracy sentence and conviction but the motion was denied. The Court of Appeals reversed and wrote:
Defendant’s plea to the conspiracy count was induced by the judge’s specific representation to him that he would thereby extend his minimum incarceratory term by a year and a half only. It simply cannot be said on this record that defendant, who was clearly working toward achieving the earliest release date possible, would have pleaded guilty absent this assurance. Generally, “when a guilty plea has been induced by an unfulfilled promise either the plea must be vacated or the promise honored, but that the choice rests in the discretion of the sentencing court” … . People v Monroe, 41, CtApp 4-2-13
The Court of Appeals, in an opinion by Judge Pigott, held that an “Alford” plea entered in a criminal proceeding, in which there was no factual colloquy about the underlying offenses, should not be given a preclusive effect in a subsequent Worker’s Compensation proceeding related to the same facts. The opinion includes a discussion of the criteria for and appropriate use of an “Alford” plea (in which guilt is not admitted). In the Matter of Howard v Statute Electric, Inc., No. 29, CtApp 3-21-13
The Third Department noted that the factual sufficiency of an indictment is a non-jurisdictional defect which does not survive a guilty plea. People v Cruz, 104251, 3rd Dept. 3-21-13
In a criminal contempt (first degree) case, the Fourth Department determined defendant’s plea colloquy “negated essential elements of the crime to which he pleaded guilty inasmuch as his colloquy indicated that the order of protection was not issued pursuant to the statutory sections set forth in Penal Law [section] 215.51 (c), and that the predicate conviction was not based upon a violation of such an order of protection.” In light of the colloquy, County Court had a duty to inquire further to make sure the plea was knowing and voluntary. The plea was vacated. People v Coleman, 25, KA 09-01157, 4th Dept. 3-15-13
By pleading guilty a defendant forfeits appellate review of a claim that his statutory right to a speedy trial pursuant to Criminal Procedure Law 30.30 was violated. However, a defendant’s constitutional speedy trial claim survives both a guilty plea and a waiver of the right to appeal. People v Franco, 2013 NY Slip Op 01570, 2009-10119, Ind No 10795/07, 2nd Dept. 3-13-13
The First Department held that as long as the prosecutor presents evidence regarding potential charges to a grand jury, court-permission to re-present the charges is required. “The critical question is whether the grand jury failed to indict after a full presentation of the case.” The fact that the prosecutor “withdrew” the charges from the grand jury’s consideration, or allowed the grand jury to vote to “take no affirmative action” on them, is of no consequence. The prosecutor’s failure to request and receive court-permission to re-present is a reversible error which survives a guilty plea. People v Dinkins, 8603, 1443/10, 1st Dept. 3-5-13
…[T]he consecutive nature of defendant’s sentence pursuant to Penal Law [section] 70.25 (2-a) is a collateral consequence of his conviction. …[T]he failure of the trial court to address the impact of Penal Law [section] 70.25 (2-a) during the plea colloquy does not require vacatur of the plea.” People vs Belliard, No. 5, CtApp 2-12-13
Defendant went to trial before he pled guilty. On appeal he argued the court erred in admitting recorded conversations. The Fourth Department determined, by pleading guilty, the defendant forfeited his right to seek review of any nonjurisdictional defects in the proceedings, including issues arising from an audibility hearing and evidentiary rulings during trial. People vs Alvarado, 130, KA 11-02011 Fourth Dept. 2-1-13
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