People v. Brown

• Citation: 170 N.E.3d 439,37 N.Y.3d 940,147 N.Y.S.3d 565
• Decision Date: 06 May 2021
• Docket Number: No. 49 SSM 4,49 SSM 4
• Parties: The PEOPLE Of the State of New York, Respondent, v. George BROWN, Appellant.
• Court: New York Court of Appeals

37 N.Y.3d 940

170 N.E.3d 439

147 N.Y.S.3d 565

The PEOPLE Of the State of New York, Respondent,

v.George BROWN, Appellant.

No. 49 SSM 4

Court of Appeals of New York.

Decided May 6, 2021

Robert S. Dean, Center for Appellate Litigation, New York City (Jody Ratner of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Kyle R. Silverstein of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed.

During the plea proceeding, defendant pleaded guilty and waived his right to appeal pursuant to a negotiated sentence that was subsequently imposed. His challenge to the validity of his appeal waiver was properly rejected. Under the circumstances, as the Appellate Division concluded, defendant's contention that his CPL 380.50(1) right to an opportunity to make a personal statement at sentencing was violated is not reviewable because such a claim did not survive the valid appeal waiver. Although the statutory right is "deeply rooted" and "substantial," its value is largely personal to defendant (see People v. McClain, 35 N.Y.2d 483, 364 N.Y.S.2d 143, 323 N.E.2d 685 [1974] ). Defendant's claim does not fall among the narrow class of nonwaivable defects that undermine "the integrity of our criminal justice system ... [or] implicate ... a public policy consideration that transcends the individual concerns of a particular defendant to obtain appellate review" ( People v. Muniz, 91 N.Y.2d 570, 574, 673 N.Y.S.2d 358, 696 N.E.2d 182 [1998] ; see People v. Allen, 86 N.Y.2d 599, 602–603, 635 N.Y.S.2d 139, 658 N.E.2d 1012 [1995] ). Moreover, despite defendant's arguments to the contrary, a valid unrestricted waiver of appeal elicited during a plea proceeding can preclude appellate review of claims that have "not yet reached full maturation," including those arising during sentencing ( Muniz, 91 N.Y.2d at 575, 673 N.Y.S.2d 358, 696 N.E.2d 182 ; see People v. Hidalgo, 91 N.Y.2d 733, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998] [harsh and excessive sentence claim]; People v. Pacherille, 25 N.Y.3d 1021, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015] [denial of youthful offender status]; People v. Callahan, 80 N.Y.2d 273, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] [procedural challenge to restitution sentence]), nor is this challenge to presentence procedures reviewable under the illegal sentence exception (see Callahan, 80 N.Y.2d at 281, 590 N.Y.S.2d 46, 604 N.E.2d 108 ).

WILSON, J. (dissenting):

In the year 399 BCE, Socrates, whom Plato lauded as the wisest and most just of all persons, was convicted of impiety and moral corruption of the Athenian youth. According to custom, he spoke at length before sentence was pronounced. The right of a condemned defendant to speak at sentencing carried into the English common law, and into New York's common law and criminal procedure law. It stopped with George Brown.

Because this error implicates the fundamental fairness of our criminal justice system, I dissent.

I.

On March 17, 2017, Mr. Brown pled guilty to Attempted Assault in the First Degree in exchange for a negotiated sentence of seven years in prison with five years' post-release supervision and a permanent order of protection. He also agreed to waive his right to appeal. On May 1, Mr. Brown appeared for sentencing. The hearing was administered with swift, businesslike efficiency: the Court, prosecutor, defense counsel and Mr. Brown all understood the agreement they had reached. After arraignment, the court clerk told Mr. Brown, on the record and in open court: "Before the Court pronounces the sentence, the People will be given an opportunity to make a statement, your lawyer will be given an opportunity to make a statement and you will also make a statement if you so wish."

Next, the People spoke, requesting that Mr. Brown be sentenced as promised. Mr. Brown's counsel noted his objection to the Court's denial of Mr. Brown's motion to cut his hair and defer the mandatory surcharge. The Court interjected, asking: "Did he already waive his right to appeal?" The People responded in the affirmative, and the clerk produced the signed waiver. The Court glanced at it and asked the People if they wanted to say anything. "I already did," they responded. The Court then explained the order of protection for the victim, asking Mr. Brown, "Do you understand that?" Mr. Brown spoke for the first time, answering yes but adding that he did not know the victim. At the previous hearing, Mr. Brown had expressed concern that he could unknowingly violate the order of protection because the victim was a stranger. At the time, the Court had reassured him that as long as any contact was unintentional, he would not violate the order. But now, the Court simply asked, "Do you understand what I just told you?" Mr. Brown said he did.

The Court continued, reminding Mr. Brown that he was forbidden from carrying a firearm and instructing him to sign the order of protection, which Mr. Brown did. Then, the Court sentenced Mr. Brown to seven years in state prison, five years post-release supervision, $300 mandatory surcharge, $25 crime victim's fee and a DNA fee of $50. Mr. Brown's counsel objected to the DNA fee, which the Court denied. Then, Mr. Brown asked:

"Am I going to get a chance to talk? This whole thing is bull. I don't understand this. It don't matter to me. Let's get this shit over with. Y'all, I love you all. I'll see y'all when I see y'all. Fuck that."

Mr. Brown never was permitted to make a statement at sentencing.

The majority concludes that Mr. Brown's waiver of the right to appeal waived his right to speak at sentencing. Even if we assume that his appeal waiver was valid, I fail to understand how it could waive his right to speak at sentencing. The statutory violation on which Mr. Brown's appeal is based occurred after he waived his right to appeal. We have never held that an appeal waiver will bar a defendant from challenging future errors. It is impossible to see how such a procedure could fall within our settled jurisprudence requiring that waiver be "knowing, voluntary and intelligent." It is hard to see how it could comport with due process. At the time he entered into his plea agreement and waived his right to appeal, he had every reason to believe that part of the bargain included his right to address the court at sentencing. Additionally, the right of the defendant to an allocution is not only "a matter of fairness to the accused," but also implicates "the reality of fairness in the process itself," and thus should be among the narrow category of rights that survive the waiver of the right to appeal ( People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ).

II.

At common law, the right of allocution dates back to the 17th Century ( Green v. US, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 [1961] ). In early modern England, the penalty for almost all felonies was death, and after sentence was pronounced the defendant was "placed in a state of attainder" and "regarded as dead in law" (Paul W. Barrett, Allocution, 9 Mo L Rev 115, 120 [1944]). As a result, a defendant could not serve as a witness, maintain an action, prepare a will or dispose of property (id ). Attainder was not only punishment for the defendant, but also the defendant's family: all property was forfeited to the crown and any children lost their right to inherit and any titles of nobility (id ). Given those harsh consequences, the allocution allowed the defendant to offer a defense or plead a recognized ground for reprieve (for example, pregnancy or insanity), the failure to offer the defendant the opportunity to speak was grounds for a reversal of the attainder (id. at 120–121).

The right of allocution is a long-standing one in New York, where courts adopted it directly from the common law. In the 1854 case Safford v. People, the Saratoga General Term concluded that it was "undoubtedly" necessary that the court accord the defendant an opportunity "to say why judgment should not be pronounced against him" ( 1 Parker Crim. Rep. 474, 476 [1854] ). Describing the common law allocution requirement, the court reasoned that the "practice has its foundation in good sense and common justice" ( id. at 477 ). We subsequently defined the allocution as a "substantial legal right" in Messner v. People, stating that the "court has no more power to dispense with this rule or disregard it than it has any other legal rule, which the wisdom and experience of ages has found necessary for the protection of the innocent" ( 45 N.Y. 1, 7 [1871] ). The right was first codified as section 480 of the Code of Criminal Procedure in 1881¹ and is incorporated in the modern code in CPL 380.50. That provision governed Mr. Brown's sentencing and the sentencing of all criminal defendants convicted of a crime by our courts: "The defendant also has the right to make a statement personally in his or her own behalf, and before pronouncing sentence the court must ask the defendant whether he or she wishes to make such a statement."

With the advent of modern criminal procedure–particularly the right to counsel– denial of the right of allocution is no longer thought of as the basis for vacating a conviction, but the essential importance of the right is still widely recognized. "None of these modern innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation," the U.S. Supreme Court reasoned in Green v. US, 365 U.S. at 304, 81 S.Ct. 653. "The most persuasive counsel" – the Court continued – "may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself" ( id ). Similarly, in People v. McClain, we stated "the right has long been regarded as substantial" ( 35 N.Y.2d 483, 490, 364 N.Y.S.2d 143, 323 N.E.2d 685 [1974] ). Both U.S. Supreme Court precedent and our own directs sentencing courts to "unambiguously address themselves to the defendant"...