People v. Amos

Decision Date13 October 2021
Docket NumberInd. No. 10464/16,2019-05572
Citation155 N.Y.S.3d 204,198 A.D.3d 797
Parties The PEOPLE, etc., respondent, v. Shamel AMOS, appellant.
CourtNew York Supreme Court — Appellate Division

Justin C. Bonus, Forest Hills, NY, for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Dmitriy Povazhuk of counsel), for respondent.

WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (ShawnDya Simpson, J., at plea; Martin P. Murphy, J., at motion; Donald Leo, J., at sentencing), rendered November 27, 2018, convicting him of criminal possession of a weapon in the second degree (two counts), upon his plea of guilty, and imposing sentence.

ORDERED that the matter is remitted to the Supreme Court, Kings County, for further proceedings, including a hearing, on the defendant's motion to withdraw his plea of guilty, and thereafter a report to this Court as to the Supreme Court's findings with respect to whether the defendant has established his entitlement to the withdrawal of his plea, and the appeal is held in abeyance pending receipt of the Supreme Court's report, which shall be filed with all convenient speed.

The defendant was charged with the unlawful possession of various firearms after a warrant was executed at his mother's residence. The defendant agreed to enter into a plea agreement with the prosecuting authorities. Pursuant to that agreement, the defendant pleaded guilty to two counts of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ), in return for a promised sentence of two concurrent terms of seven years of imprisonment, to be followed by a period of five years of postrelease supervision.

After obtaining new counsel, the defendant made a written pre-sentence motion to withdraw his plea pursuant to CPL 220.60(3). The defendant contended that he had a viable defense which he had not understood at the time that he agreed to plead guilty, and that his plea of guilty was not knowing, intelligent, and voluntary.

The People opposed the defendant's motion to withdraw his plea. The People contended that "[t]here is ample evidence showing the defendant possessed the firearms."

The Supreme Court denied the defendant's motion without holding a hearing. The court determined that "[w]hen there is nothing apparent from the plea minutes that demonstrates the defendant's inability to comprehend the proceedings or work with his or her counsel[ ] or that the defendant appeared confused or disoriented, a guilty plea cannot be withdrawn" (emphasis omitted). After listing the various statements made by the defendant at the plea proceeding, the court concluded that the "defendant's allegations are belied by the record and accordingly are not reviewable by this court" (emphasis omitted).

The defendant was subsequently sentenced, in accordance with the plea agreement, to two concurrent terms of seven years of imprisonment, to be followed by a period of five years of postrelease supervision. The defendant appeals.

On appeal, the defendant contends, among other things, that the Supreme Court erred in denying his motion to withdraw his plea of guilty without holding a hearing. The defendant is correct.

In general, "such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea" ( People v. De Jesus, 199 A.D.2d 529, 530, 606 N.Y.S.2d 255 ; see People v. Nettles, 30 N.Y.2d 841, 841–842, 335 N.Y.S.2d 83, 286 N.E.2d 467 ; People v. Englese, 7 N.Y.2d 83, 87, 195 N.Y.S.2d 641, 163 N.E.2d 869 ; People v. Swain, 192 A.D.3d 827, 829, 143 N.Y.S.3d 104 ; People v. Haffiz, 77 A.D.3d 767, 768, 909 N.Y.S.2d 490, affd 19 N.Y.3d 883, 951 N.Y.S.2d 690, 976 N.E.2d 216 ; People v. Smith, 54 A.D.3d 879, 880, 863 N.Y.S.2d 818 ). "A defendant is not entitled to withdraw his guilty plea based on a[n] ... unsupported claim" ( People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329 ; see People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ; People v. Hollmond, 191 A.D.3d 120, 136–137, 135 N.Y.S.3d 449 ), or "when the minutes of the plea are unequivocal and refute [the defendant's] contention" ( People v. Frederick, 45 N.Y.2d 520, 526, 410 N.Y.S.2d 555, 382 N.E.2d 1332 ; see People v. Haffiz, 77 A.D.3d at 768, 909 N.Y.S.2d 490 ; People v. Miranda, 67 A.D.3d 709, 710, 886 N.Y.S.2d 890 ; People v. Scotti, 142 A.D.2d 616, 617, 530 N.Y.S.2d 271 ; People v. Martin, 133 A.D.2d 852, 852, 520 N.Y.S.2d 214 ). "Where, however, the record raises a legitimate question as to the [validity] of the plea, an evidentiary hearing is required" ( People v. Hollmond, 170 A.D.3d 1193, 1194, 97 N.Y.S.3d 148 ; see People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 ).

"In deciding whether to grant a defendant's motion to withdraw a guilty plea, additional factors may be relevant" ( People v. Hollmond, 191 A.D.3d at 137, 135 N.Y.S.3d 449 ). "For instance, the time that has elapsed between the guilty plea and the motion to vacate it has been described as a ‘significant’ factor" ( id., quoting People v. Nixon, 21 N.Y.2d 338, 355, 287 N.Y.S.2d 659, 234 N.E.2d 687 ). "In addition, a court should consider the prejudice, if any, that would result to the People if the motion to withdraw the plea is granted" ( People v. Hollmond, 191 A.D.3d at 137, 135 N.Y.S.3d 449 ; see People v. Leslie, 98 A.D.2d 977, 470 N.Y.S.2d 259 ; People v. Griffin, 77 A.D.2d 666, ––– N.Y.S.2d –––– ; People v. Arcuri, 64 A.D.2d 1028, 1028–1029, 409 N.Y.S.2d 319 ; People v. McIntyre, 40 A.D.2d 1038, 338 N.Y.S.2d 1011 ; People v. East, 39 A.D.2d 606, 332 N.Y.S.2d 396 ).

In People v. Nixon, 21 N.Y.2d 338, 354, 287 N.Y.S.2d 659, 234 N.E.2d 687, the Court of Appeals stated that "[i]t is not tolerable for the State to punish its members over protestations of innocence if there be doubt as to their guilt, or if they be unaware of their rights, or if they have not had opportunity to make a voluntary and rational decision with proper advice in pleading guilty." "[W]here initial inquiry exposes difficulties or subsequent interpositions by defendant on sentencing raise questions, the court should be quick to offer the defendant an opportunity to withdraw his [or her] plea and at the very least conduct a hearing" ( id. at 355, 287 N.Y.S.2d 659, 234 N.E.2d 687 ). "Such opportunities offered will squelch the faker and protect the truly misguided ones; and prompt hearings will be better than later ones after direct appeal or collateral post-conviction attack" ( id. ).

In applying all of these considerations, the Court of Appeals has repeatedly stated that "[w]here, after a plea of guilty has been entered, and before sentence, defendant states to the court he [or she] is not guilty, or that he [or she] believes he [or she] is not guilty, the rule has developed that the court should not, except in extraordinary circumstances, then impose sentence, but either grant an application to allow the plea to be withdrawn; or conduct a hearing to determine whether the application has merit" ( People v. McKennion, 27 N.Y.2d 671, 672–673, 313 N.Y.S.2d 876, 261 N.E.2d 910 ; see People v. McClain, 32 N.Y.2d 697, 697–698, 343 N.Y.S.2d 601, 296 N.E.2d 454 ; People v. Nixon, 21 N.Y.2d at 355, 287 N.Y.S.2d 659, 234 N.E.2d 687 ).

Here, the defendant moved to withdraw his plea prior to the imposition of his sentence (see CPL 220.60[3] ). The defendant contended that he had a viable defense to the charges which he had not understood at the time that he agreed to plead guilty, and that his plea of guilty was not knowing, intelligent, and voluntary. Specifically, the defendant contended that he did not reside at his mother's home prior to the execution of the warrant, and that the weapons recovered from his mother's residence did not belong to him. The defendant contended that the weapons belonged to another individual who had been residing at his mother's home and who had placed the weapons inside a closet at that location without the defendant's knowledge or consent. The defendant contended, in essence, that he did not voluntarily possess the weapons at issue.

" ‘Possess’ means to have physical possession or otherwise to exercise dominion or control over tangible property" ( Penal Law § 10.00[8] ). This definition has been "judicially interpreted as encompassing the doctrine of constructive possession, as well as physical possession" ( People v. Sierra, 45 N.Y.2d 56, 60, 407 N.Y.S.2d 669, 379 N.E.2d 196 ; see People v. Wesley, 73 N.Y.2d 351, 361–362, 540 N.Y.S.2d 757, 538 N.E.2d 76 ; People v. Torres, 68 N.Y.2d 677, 679, 505 N.Y.S.2d 595, 496 N.E.2d 684 ).

Regardless of whether it is physical or constructive, possession constitutes the actus reus, or the "forbidden act" of a possessory crime ( People v. Saunders, 85 N.Y.2d 339, 341, 624 N.Y.S.2d 568, 648 N.E.2d 1331 ; see People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463 ; People v. Ansare, 96 A.D.2d 96, 97, 468 N.Y.S.2d 269 ). Possession thus "includes the Penal Law definitional component of [a]"[v]oluntary act’ " " ( People v. Saunders, 85 N.Y.2d at 341, 624 N.Y.S.2d 568, 648 N.E.2d 1331, quoting Penal Law § 15.00[2] ). As relevant here, a " ‘voluntary act’ ... includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it" ( Penal Law § 15.00[2] ).

"Thus, the corpus delicti of weapons possession ... is the voluntary, aware act of the possession of a weapon" ( People v. Saunders, 85 N.Y.2d at 341–342, 624 N.Y.S.2d 568, 648 N.E.2d 1331 [citation omitted]; see People v. Persce, 204 N.Y. 397, 402, 97 N.E. 877 ; People v. Ansare, 96 A.D.2d at 97, 468 N.Y.S.2d 269 ; People v. Cohen, 57 A.D.2d 790, 791, 394 N.Y.S.2d 683 ). In other words, "...

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