People v. Alexander
| Decision Date | 03 May 2012 |
| Citation | 947 N.Y.S.2d 386,970 N.E.2d 409,2012 N.Y. Slip Op. 03475,19 N.Y.3d 203 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Hans ALEXANDER, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Center for Appellate Litigation, New York City (Jonathan M. Kirshbaum and Robert S. Dean of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Megan R. Roberts, Thomas R. Villecco, Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for respondent.
Before defendant Hans Alexander pleaded guilty, the trial judge observed to defense counsel that she would accept the plea “on the condition” that defendant withdraw any and all outstanding motions, which included a recently filed pro se constitutional speedy trial motion, and waive the right to appeal. During allocution, the judge twice asked defendant if he “under [stood]” that by entering into the guilty plea, all his “outstanding writs and motions” were “being withdrawn,” and he responded that he did. We conclude that the judge's statements, considered in context, do not go against our decisions in People v. White, 32 N.Y.2d 393, 345 N.Y.S.2d 513, 298 N.E.2d 659 (1973),People v. Blakley, 34 N.Y.2d 311, 357 N.Y.S.2d 459, 313 N.E.2d 763 (1974) and People v. Sutton (decided with People v. Callahan, 80 N.Y.2d 273, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ). Accordingly, we affirm the judgment of conviction and sentence in this case.
By indictment filed on December 8, 2006, the grand jury charged defendant and a codefendant, acting in concert, with third-degree criminal sale of a controlled substance (Penal Law § 220.39[1] ) and criminal sale of a controlled substance in or near school grounds (Penal Law § 220.44[2] ); while in jail awaiting trial, defendant filed numerous pro se motions and habeas corpus petitions. When defendant, his codefendant and the People appeared before Supreme Court on January 11, 2008, the judge informed them that although they were all “ready for trial” that day, she had “got[ten] word ... literally just about two hours ago, that [defendant had] filed another writ with the [Appellate Division], which [had] been granted.” Defendant claimed in this particular petition that his indictment was defective because the People neglected to instruct the grand jury on the agency defense ( see People v. Lam Lek Chong, 45 N.Y.2d 64, 73, 407 N.Y.S.2d 674, 379 N.E.2d 200 [1978] []; People v. Valles, 62 N.Y.2d 36, 476 N.Y.S.2d 50, 464 N.E.2d 418 [1984] [] ).1
The trial judge explained that because “that writ now [was] back before [her] and ... [would] have to be decided[,] the People [would] have to be given a reasonable opportunity to respond,” which meant that the trial had to be “put off.” In light of her trial schedule and a pending move of the court's operations to a new building, she suggested an adjourned date of March 4, 2008, a seven-week delay. Defendant's attorney then informed the judge that his client had asked him “to make further inquiry” regarding a new offer conveyed by the prosecutor that day for a determinate sentence of 1 1/2 years in prison, followed by one year of postrelease supervision, in exchange for a plea to a felony. He remarked that The judge answered “Yes,” and a brief off-the-record discussion ensued at the bench.
The trial judge, addressing defendant's attorney directly, then stated as follows: “I just want you to know that I will accept the plea, obviously, on the condition that [defendant] is withdrawing any and all motions that are outstanding before the Court and he's waiving his right to appeal.” The outstanding motions included a pro se speedy trial motion filed by defendant on December 29, 2007, and marked received in the judge's trial part on January 10, 2008, the day before the scheduled trial.2 In this motion, defendant alleged a violation of his speedy trial rights under the federal and state constitutions, CPL 30.20(1) () and CPL 30.30(1)(a) ().3
Defendant's attorney next informed the judge that his client was “under the impression that he [could] be released from this courtroom,” rather than “go Upstate.” After some discussion, the judge clarified that defendant, in fact, would have to “go Upstate”—i.e., enter the state penal system to have the Department of Correctional Services (now the Department of Corrections and Community Supervision) calculate his jail time credit before his release. Upon hearing that apparently unwelcome news, defendant instructed his counsel to let the judge know he was “not interested” in entering a guilty plea.
After a pause in the proceedings, the trial judge and codefendant's counsel had some discussion. A further pause ensued, and then defendant's attorney told the judge that
“after having a number of conversations with [defendant] and also after having had an opportunity to review the writs that have been filed with the Court as well as the motions filed with the Court and the hearing minutes and so on, at this time [defendant] authorizes me to enter a plea of guilty on his behalf in full satisfaction of the indictment that is currently before the Court, to Penal Law Section 220.31, which is criminal sale of a controlled substance in the fifth degree, with the understanding that [he] will be receiving credit for all the time that he has currently served while in jail; with the further understanding that he will also be required to waive his right to appeal.
The trial judge pointed out to defendant that he was being offered “the very minimum” sentence possible in light of his predicate felony status, and he acknowledged that he understood this. The judge added, “And you understand by taking this plea, all of your outstanding writs and motions that you have are being withdrawn; do you understand that?” to which defendant replied, “Withdrawn.”
Defendant then acknowledged that he had been allowed enough time to discuss the plea offer with his attorney, with whose representation he was satisfied; that he understood he would be pleading to a D felony, fifth-degree criminal sale of a controlled substance, for the promised sentence of 1 1/2 years in prison plus one year of postrelease supervision; and that “by entering into this plea, all prior writs and motions that [were] outstanding [were] being withdrawn.” He further confirmed that he understood that he was giving up his rights to a jury trial, to have the People prove his guilt beyond a reasonable doubt, to confront witnesses and to remain silent.
Defendant next admitted that, on November 18, 2006, acting with another, he sold cocaine to an undercover police officer. He averred that no one had forced him to plead guilty; that he was, in fact, guilty; and that the only promise made to him was as to his sentence. Defendant then signed a written waiver of his right to appeal and assured the court that he understood that by signing the waiver, he was giving up “certain legal rights ... spelled out” in that document.4 The judge adjudicated defendant a predicate felony offender and adjourned the case until January 30, 2008 for sentencing.
On January 17, 2008, defendant filed a pro se motion pursuant to CPL 220.60(3), seeking an order permitting him to withdraw his guilty plea and reinstating the indictment. He asserted numerous reasons to support a claim that his plea was not knowing and voluntary, including ineffective assistance of counsel and that, under Blakley, “the nature of the speedy trial guarantee render[s] a waiver of such a claim or the withdrawal inherently coercive in a plea bargaining situation, so that a plea conditioned on a waiver or withdrawalmust be vacated.” In an affirmation in opposition served on February 28, 2008, the People, quoting extensively from the plea hearing's minutes, argued generally that the record contravened defendant's claims. In a decision and order filed on April 15, 2008, the new judge assigned to the matter ordered a hearing in light of the “[f]actual issues ... raised by the opposing affirmations.”
The hearing was held over four days, July 16, September 12, October 8 and October 24, 2008. Defendant called as a witness his attorney at the time he pleaded guilty, a 49–year–old criminal defense lawyer who had been practicing since 1986. The attorney, who began representing defendant in September 2007, testified that he had a “number of conversations” with defendant regarding his pro se motions; and that he had warned him about the risks associated with presenting the “very dangerous” agency defense at trial; namely, as a consequence, defendant's numerous prior...
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