People v. Blanco

• Citation: 75 Misc.3d 1207 (A),167 N.Y.S.3d 383 (Table)
• Decision Date: 18 May 2022
• Docket Number: Docket No. CR-025802-19NY
• Parties: The PEOPLE of the State of New York v. Henry BLANCO, Defendant.
• Court: New York Criminal Court

75 Misc.3d 1207 (A)
167 N.Y.S.3d 383 (Table)

The PEOPLE of the State of New York
v.
Henry BLANCO, Defendant.

Docket No. CR-025802-19NY

Criminal Court, City of New York, New York County.

Decided on May 18, 2022

For the Defendant: Stephen Edwards, Esq.

For the People: Alvin L. Bragg Jr., District Attorney, (Sarah Stein, of counsel)

Jonathan Svetkey, J.

Defendant asked the court to find that he had satisfied the conditions of the plea agreement in this case. The People opposed the application asserting that defendant's arrest subsequent to his guilty plea violated that agreement. Defendant countered that the dismissal of the case based upon his re-arrest renders it a nullity and consequently provides no basis to find that he violated the plea agreement.

The court agreed with the defendant and in accordance with the plea agreement vacated his guilty plea to Aggravated Harassment in the Second Degree and sentenced him to a conditional discharge on the remaining count of Disorderly Conduct.

This decision explains the reasons for the court's rulings.

Background

Defendant was arrested and arraigned on August 5, 2019 and charged in a criminal court complaint with Aggravated Harassment in the Second Degree ( Penal Law § 240.30[2] ) and Harassment in the Second Degree ( Penal Law § 240.26[1] ). He was released on his own recognizance and the case was adjourned to Manhattan Criminal Court Part D to September 9, 2019 for a supporting deposition.

The Accusatory Instrument

The People thereafter on September 23, 2019 served and filed a superseding first party misdemeanor information containing two counts of Aggravated Harassment in the Second Degree ( Penal Law § 240.30[1][A] and § 240.30[2] ), two counts of Stalking in the Fourth Degree ( Penal Law § 120.45[1] and § 120.45[2] ) and a count of Harassment in the Second Degree ( Penal Law § 240.26[1] ).

The information alleges in part that on or about August 4, 2019 through August 5, 2019 the defendant made "195 phone calls" to the complainant in addition to sending her over one hundred text messages. The allegations include extensive quotes from one of the text messages including defendant's statement that, "all my things will be rounded up but not till you face the flame. U must be insane if you think I'm gonna let u get away with disrespecting me this way. The national guard couldn't save you."

The Plea Agreement

On December 12, 2019 defendant pled guilty to charges in three separate prosecutions two of which are not relevant to these proceedings. In the instant matter he entered into a re-pleader agreement pleading guilty to both the misdemeanor charge of Aggravated Harassment in the Second Degree ( Penal Law § 240.30[1][A] ) and the added count of Disorderly Conduct ( Penal Law § 240.20 ). The conditions of the plea agreement required the defendant to complete three months of mental health counseling that included an intimate partner violence component and remain arrest free for six months. Upon satisfaction of these terms he would be allowed to withdraw his plea to Aggravated Harassment in the Second Degree and be sentenced to a conditional discharge on the plea to Disorderly Conduct. The sentence also would include a full and final order of protection and a permanent waiver of the sealing of the record.

Case Adjournments & Defendant's February 25, 2020 Arrest

Counsel did not appear on the next court date of January 31, 2020 but notations on the court papers indicate that defendant was compliant with the plea conditions.

At the next court appearance on February 13, 2020 the case apparently was adjourned to March 24, 2020 for proof that defendant completed the mental health program component of the agreement.

The defendant was rearrested on February 25, 2020 and charged with criminal contempt arising from two separate incidents that took place after the plea in the instant matter.

The pandemic intervened.

Administrative adjournments for the instant matter took place on March 24, 2020, June 22, 2020, September 22, 2020 and October 14, 2020 with the parties finally appearing in court on November 12, 2020. The People noted that defendant had two new arrests (there appears to have been one arrest based upon two separate incidents) and the court adjourned the case for sentencing to December 18, 2020.

Defendant and counsel did not appear on that date and the court issued and stayed a bench warrant. There were subsequent adjournments on February 8, 2021 and March 23, 2021 when defendant appeared without counsel.

At the next adjourn date of March 26, 2021 the court papers note that new counsel was to be assigned.

The March 22, 2021 Arrest, Arraignment and Guilty Plea

Defendant was arrested again on March 22, 2021 and arraigned that day. He was charged with the felony Aggravated Family Offense and other crimes.

At defendant's arraignment the People requested bail arguing that the Aggravated Family Offense though not a per se bail qualifying offense would qualify as such pursuant to the so-called "harm/harm" provision set out in CPL 510.10 (4) (t). They submitted the complaint for the pending offense which charged defendant with Criminal Contempt in the Second Degree for violating an order of protection that had been issued December 12, 2019 in conjunction with defendant's guilty plea to misdemeanor criminal contempt. They then recounted the allegations underlying the felony arraignment charge.

Defense counsel objected to the People's application on the grounds that "the complaint that was sent by the prosecutor ... just says that she got messages and phone calls that were in violation of the order of protection, but it doesn't say that it caused her any harm to [ ] her person." Transcript page 8.

The court noted that there was "nothing about the content of these messages in the underlying Criminal Court Complaint [and] ... [i]n order ... to find that this case is bail eligible, I have to find that reasonable cause to believe in harm as to the underlying case and the case that's before me right now" concluding that "a criminal contempt also creates some harm to the person who has the order of protection" in finding that the arraignment charge qualified as a bail eligible offense. Transcript pages 8-9.

The court set monetary bail and defendant remained in custody until his appearance in Manhattan Criminal Court Part F on March 26, 2021. At that appearance defendant pled guilty to Stalking in the Fourth Degree ( Penal Law § 120.45[1] ) a class B misdemeanor and was sentenced to one year probation.

The Instant Matter Continues Without Resolution and The February 25, 2020 Arrest Case Is Dismissed

Defendant failed to appear in court on April 21, 2021 and the court issued and stayed a bench warrant. The parties appeared on May 13, 2021 and subsequent adjourn dates on June 22, 2021 and July 20, 2021. The court papers indicate that the People each time opposed the re-pleader because of defendant's re-arrest and that the case was being adjourned to "track" an unspecified matter, presumably the case arising from defendant's February 25, 2020...