People v. Amendolara

• Decision Date: 16 March 1987
• Citation: 514 N.Y.S.2d 598,135 Misc.2d 170
• Parties: The PEOPLE of the State of New York v. Michael AMENDOLARA, Defendant.
• Court: New York Supreme Court

Page 598

514 N.Y.S.2d 598

135 Misc.2d 170

The PEOPLE of the State of New York v. Michael AMENDOLARA, Defendant.

Supreme Court, New York County Trial Term, Part 56.

March 16, 1987.

Sterling Johnson, Sp. Asst. Dist. Atty., New York City (Renee Franklin, of counsel), for People.

Martin Schmukler, New York City, for defendant.

ROTHWAX, Judge:

The defendant moves pursuant to sections 30.20 and 30.30, subdivision 1 of the Criminal Procedure Law to dismiss the indictment for failure to afford him the statutory and/or constitutional right to a speedy trial. The court, based upon the movant's papers and minutes of the previous proceedings upon the indictment, finds the history of the prosecution as follows:

On December 19, 1984 the defendant and seven others were arrested in the course of an alleged sale of almost fifteen ounces of cocaine. This defendant was arraigned on a felony complaint and posted bail on December 20. An indictment was voted December 21 and filed December 27 (8275/84). This defendant and a codefendant, Brian Reilly, were charged with criminal sale and with criminal possession of a controlled substance in the first degree and with possession in the seventh degree, all in connection with the alleged sale. The alleged buyers were similarly indicted for possession. Additionally, this defendant and his wife were indicted for possession of a large quantity of drugs and weapons in their home.

The defendants were arraigned on the indictment on January 14, 1985. From that date until March 21, no motions (except demands for discovery pursuant to CPL 240.20) were filed. The defendant requested leave to obtain new counsel on January 31 and new counsel entered the case on March 1. The People supplied counsel with copies of the eavesdropping and search warrants and applications on that date. Despite the court's twice indicating (on March 21 and on April 17) that defendant had a final opportunity to file motions, no omnibus motion was filed until May 13. (A formal motion for discovery was filed on March 21.)

The People responded to defendant's discovery motion on June 11 and to the omnibus motion on July 23. The court charged three weeks against the People, due to the prosecuting attorney's vacation schedule. Following the People's initial reply to defense motions, an exchange of defense motions and prosecution replies continued until November 26. During this period the motions were under consideration by the court.

On January 31, 1986 the court rendered its written opinion dismissing the charges of possession in regard to defendant's home, as a result of suppression of evidence seized pursuant to a search warrant improvidently issued. The case was then set down for hearing on the issue of minimization under the eavesdropping warrant, and for trial. On February 18, the court denied defendant's motion to reargue its prior decision.

On February 28, 1986 when the case was scheduled for trial, the assigned prosecutor was already engaged on trial in another matter. Defendant's counsel stated to the court that plea negotiations were in progress, in any event, and that there was a likelihood of disposition by plea. Prosecution counsel was again on trial on March 17 and the subsequent adjournment to May 8 was at the People's request. On May 8, codefendant's counsel was engaged in another trial. A further adjournment from May 15 to 28 was at the People's request.

Finally, on May 28, 1986 the People announced their readiness and moved the case to trial from the calendar to a trial part. The matter was adjourned from day to day while defendant considered the People's plea offer. On May 30, the defendant and his codefendant Reilly withdrew their pleas of not guilty and offered to plead guilty to criminal sale of a controlled substance in the second degree, upon an agreement that each would receive a sentence of from three years to life imprisonment. As part of the agreement Reilly was to testify against the "remaining codefendants" who were, as of then, the alleged buyers.

Ordinarily, the foregoing review of the facts would suffice to resolve the issue since a plea of guilty constitutes a termination of the prosecution (CPL § 1.20, subd. 13; see, e.g., People v. Matthews, 71 A.D.2d 864, 419 N.Y.S.2d 192 [2d Dept. 1979] ). The circumstances surrounding the entry of the plea here were, however, extraordinary and require further detailed discussion.

The trial court conducted an allocution covering thirty transcribed pages. The court began by asking the defendant if he understood that his counsel had asked the court "to approve or give my consent to your taking back your not guilty plea ... [and] to approve or give my okay to your pleading guilty to the crime of criminal sale of a controlled substance in the second degree, a class A-2 felony, to take care of this entire indictment." The defendant stated that it was his understanding and his desire. The court then proceeded to explain to the defendant in detail that the plea had the legal effect of a conviction after trial; that there would be no trial; that the prosecution would be relieved of its burden of proof; that the defendant would forfeit his role in jury selection, and his rights to hear the witnesses against him, to have counsel cross-examine the witnesses and to expose untruths or mistakes in their testimony, to have the court pass upon the sufficiency of the People's case, to testify in his own behalf or not to testify if he so chose, to call witnesses, to participate in his defense, and to have the jury hear the law, deliberate, and render a unanimous verdict of guilty or a verdict of not guilty. After each point, which the court explained at length and in lay terms, the defendant indicated that he understood. The court then asked if defendant still wanted his plea taken and defendant replied affirmatively. The court then, after advising defendant that he would be waiving his privilege against self-incrimination, which "nobody in the world could force you to do," asked the defendant if he were willing to state his involvement in the crime. He agreed. The prosecutrix stated what she would prove at trial, in detail, including the content of intercepted telephone calls between Reilly and the buyers and between Reilly and the defendant; physical surveillance of meetings and of the transaction; and the seizure and analysis of the narcotics. The prosecutrix stated that the witnesses were then available. After Mr. Reilly spoke at length, the defendant described his arrangement to supply Reilly with fifteen ounces of cocaine for resale, for which he received $16,000 and admitted the occurrence of the transaction as described. The court then recited its understanding of the agreed upon sentence of from three years to life imprisonment. The defendant conceded that was his understanding; that no one had indicated the court would do otherwise; that no one had forced him to take the plea; and that he understood everything that had transpired. The court gave defendant a final opportunity to reject the plea. The defendant again repeated his wish to plead guilty. In conclusion the court stated that it was "withholding ... consent to this plea this afternoon because should I give my consent it would be required that you be sent to prison immediately. I'm going to set the matter over for July 11, 1986 ... at which time I will enter my consent or approval of this plea * * * [a]nd we'll proceed to sentence."

In the interim, the codefendants', the alleged buyers', case proceeded to trial. Charges against the buyer's agent were dismissed. The alleged buyer was acquitted on June 12, 1986. On July 10, defendant filed a motion "to withdraw [his] guilty plea." In an affidavit defendant stated, "[o]n May 30, 1986 I pleaded guilty to criminal sale of a controlled substance in the second degree, a class A-2 felony, in satisfaction of the indictment against me and with the promise of a sentence of three years to life. * * * [F]rom what I have been told, the fact of my innocence has been subsequently corroborated by the evidence at the [buyer's] trial to the effect that I was not the seller of the drugs which Reilly attempted to sell to Hough. Apparently Reilly so testified ... Thus Reilly can no longer testify against me and cause my wrongful conviction, as he could have prior to the time I offered my plea, without contradicting his sworn testimony at the Hough trial." (Emphasis by the court.)

On July 11, when defendant's case was called before the court, the court made the following observation:

"The record will reflect that when the matter was last before me ... [an] application was made ... on behalf of Mr. Amendolara to withdraw his not guilty plea and to plead guilty to the crime of criminal sale of a controlled substance in the second degree. All proceedings were taken through the allocution of the clients. Because both defendants, through their lawyers, indicated because of the mandatory requirement of taking a plea that the defendants be then [remanded, they] requested that the matter be put off until today ... at which time sufficient freedom would have been given to the defendants and that the only thing left at this stage would be for me to accept the plea. I accept the plea application made by Mr. Amendolara ... The defendants will be arraigned on their pleas."

Before the clerk of the court could repeat the allocution, defendant Reilly's counsel moved to adjourn due to his wife's pregnancy. This application was denied. The court then, referring to this defendant's affidavit, asked if the codefendant intended to withdraw his plea. Mr. Reilly's counsel indicated that if this defendant's application were granted, Reilly would similarly move. When, at the court's direction, the clerk asked Reilly if he pleaded guilty as indicated Reilly answered no "on the advice of counsel". The court then declared "(i)nasmuch as no plea was entered, the defendant, Mr. Reilly,...