People v. Carter

• Decision Date: 06 March 1987
• Citation: 513 N.Y.S.2d 331,134 Misc.2d 878
• Parties: PEOPLE of the State of New York v. John CARTER.
• Court: New York Supreme Court

Page 331

513 N.Y.S.2d 331

134 Misc.2d 878

PEOPLE of the State of New York v. John CARTER.

Supreme Court, Criminal Term Kings County, Part 34.

March 6, 1987.

Elizabeth Holtzman, Dist. Atty., Kings County (Bohdan Ozaruk, Asst. Dist. Atty., of counsel), Brooklyn, for the People.

Luther Williams, Brooklyn, for defendant John Carter.

FISHER, Judge.

On this motion, defendant John Carter seeks dismissal of the fourteen-count narcotics indictment pending against him. The issues presented involve the double jeopardy and due process implications of a misdemeanor guilty plea which the defendant entered in the Criminal Court four days after the indictment was voted and filed. The plea was accepted with the consent of an assistant prosecutor who, through an astounding failure of communication within the District Attorney's Office, was completely unaware that the indictment had been returned.

The facts here are largely undisputed.

The indictment in this case charges crimes arising out of two separate incidents. On May 2, 1984, the defendant and two others were arrested and charged, inter alia, with criminal sale of a controlled substance in the third degree. The charge grew out of an alleged sale of cocaine to an undercover police officer in the basement of 2160 Caton Avenue in Brooklyn. The defendant was arraigned on the resulting felony complaint and was released on bail.

On May 17, 1984, while at liberty on the first case, the defendant was again arrested and again charged, inter alia, with criminal sale of a controlled substance in the third degree. The allegation in this second case was that the defendant and six others had made two separate cocaine sales to two different undercover police officers at the same Caton Avenue address. The defendant was arraigned on the resulting felony complaint and was again released on bail.

The two cases proceeded independently in Criminal Court. On July 3, 1984, when the first case was called in Part AP1, an assistant district attorney offered to dispose of the matter by allowing the defendant and his two co-defendants each to plead guilty to one misdemeanor charge. The defendant now represents that, as a second felony offender, he was willing and eager to accept the misdemeanor offer but that no plea was entered because a co-defendant, apparently incarcerated on a parole violation, had not been produced in court. The case was adjourned to August 2, 1984, undoubtedly in contemplation of the co-defendant's production and the disposition of the case in accordance with the prosecutor's offer.

On July 10, 1984, the defendant's second case was called, also in Part AP1 of the Criminal Court. Again an assistant district attorney offered to allow the defendant to resolve the case with one misdemeanor guilty plea and the defendant accepted the offer. There being no apparent obstacle to the disposition, the prosecutor reduced the felony charges, the defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree, a class A misdemeanor, and the court immediately sentenced him to pay a $500. fine. ^* Following the entry of judgment, both the defendant and his counsel left the courtroom.

Later that day, the assistant district attorney came to learn that, four days earlier, the grand jury had returned the instant fourteen-count indictment which charged the defendant with narcotics offenses based upon the very same acts alleged in the felony complaints filed in both the first and second cases. ^** When the prosecutor apprised the court of his discovery, the judge vacated the guilty plea and sentence, ordered the matter transferred to the Supreme Court, and directed that the defendant and his counsel be notified. The judge also advanced the defendant's other case and transferred it to the Supreme Court as well.

On this motion, the defendant argues that his plea and sentence in Criminal Court were unlawfully vacated and now present a bar to his prosecution on the indictment under constitutional and statutory guaranties against double jeopardy. In the alternative, he maintains that principles of due process require the People to specifically perform on their promises by offering to resolve the case now with the same misdemeanor guilty pleas they were willing to accept in Criminal Court.

I Double Jeopardy

Clearly, jeopardy had not yet attached with respect to any of the charges here in issue when, on July 6, 1984, the indictment was filed. Neither of the defendant's two cases had yet been resolved with a guilty plea; neither had proceeded to trial stage (see, CPL 40.30, subd. 1, pars. [a] and [b] ). In such circumstances, a grand jury is free to investigate and indict regardless of what had previously occurred in the Criminal Court (see, e.g., People ex rel. Hirschberg v. Close, 1 N.Y.2d 258, 152 N.Y.S.2d 1, 134 N.E.2d 818). Notwithstanding the validity of the indictment when filed, however, the defendant maintains that the judgment subsequently entered against him in Criminal Court bars further prosecution.

I note that this argument has proper application only to those counts of the indictment relating to the incident of May 17, 1984--the second case in the Criminal Court. Contrary to the defendant's contention, the record unequivocally establishes that his guilty plea covered only the second case and that the first case was never actually disposed of in the Criminal Court. Jeopardy does not attach by reason of a plea bargain which is offered but never consummated, for "an accused must suffer jeopardy before he can suffer double jeopardy" (Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 43 L.Ed.2d 265).

In New York, the protections against multiple prosecutions have been expanded beyond that required by the Constitution (see, People v. Prescott, 66 N.Y.2d 216, 219, 495 N.Y.S.2d 955, 486 N.E.2d 813, cert. den. 475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349). In this State, with certain exceptions, a guilty plea to an offense bars subsequent prosecution for the same offense or for any other offense "based upon the same act or criminal transaction" (CPL 40.20 and 40.30, subd. 1, par. [a] ). The defendant's guilty plea in Criminal Court therefore would ordinarily present a bar to prosecution on all counts in the indictment relating to the incident of May 17, 1984 (see, e.g., People v. Gross, 100 Misc.2d 617, 420 N.Y.S.2d 73; cf. Matter of Parmeter v. Feinberg, 105 A.D.2d 886, 482 N.Y.S.2d 78; CPL 40.20, subd. 2, par. [c] ). That result does not follow in this case, however, because the guilty plea was entered after the indictment was returned.

To constitute an effective bar to subsequent prosecution, a guilty plea must be tendered to a court having jurisdiction to accept it (see, e.g., People ex rel. Leventhal v. Warden, 102 A.D.2d 317, 322, 477 N.Y.S.2d 332; CPL 40.30, subd. 2, par. [a] ). The New York City Criminal Court, however, is immediately divested of jurisdiction upon the filing of an indictment (CPL 170.20, subd. 1). As a consequence, any plea entered in Criminal Court after an indictment has been filed in the case is "a nullity and [has] no binding effect on subsequent proceedings" (People v. Phillips, 48 N.Y.2d 1011, 1013, 425 N.Y.S.2d 558, 401 N.E.2d 916, affg. 66 A.D.2d 696, 411 N.Y.S.2d 259).

The defendant would distinguish Phillips on the ground that that case involved a plea but not a judgment. Relying on Matter of Campbell v. Pesce, 60 N.Y.2d 165, 468 N.Y.S.2d 865, 456 N.E.2d 806, the defendant maintains that, notwithstanding any legal defect in the plea, once sentence is pronounced the court is without power to vacate the judgment absent the defendant's consent. He argues that, because he was sentenced in Criminal Court, the judgment against him was improperly vacated and must now be deemed to stand as a bar to further prosecution.

In Matter of Campbell v. Pesce, supra, the defendant was sentenced to a jail term upon his guilty plea to a misdemeanor charge in the Criminal Court. The plea was accepted with the consent of a prosecutor who had reduced the two armed felony charges contained in the original felony complaint. The reduction, however, was illegal because it had not been preceded by the required court finding that there was no reasonable cause to believe that the defendant had committed an armed felony (CPL 180.50, subd. 2, par. [b], cl. [ii] ). Two weeks after entry of judgment, the prosecutor moved to vacate the plea and sentence on the ground that the illegal reduction had rendered the guilty plea invalid. The court granted the motion, vacated the judgment, and restored the original charges.

In the ensuing article 78 proceeding, the Court of Appeals ordered that the Criminal Court judgment be reinstated and that further prosecution on the original felony charges be barred. In rejecting the argument that the Criminal Court had the inherent power to correct the error by vacating its own judgment, the Court wrote:

"In no instance have we recognized a court's inherent power to vacate a plea and sentence over defendant's objection where the error goes beyond mere clerical error apparent on the face of the record and where the proceeding has terminated by entry of judgment." (60 N.Y.2d at p. 169, 468 N.Y.S.2d 865, 456 N.E.2d 806)

In my view, the defendant's reliance upon Matter of Campbell v. Pesce, supra, is misplaced. Notwithstanding its broad language, the case cannot be read to hold that a court may exercise its inherent power to vacate a judgment only when a clerical error has been made, for "it is well settled that '[t]he language of any opinion must be confined to the facts before the court' * * * " (People v. Anderson, 66 N.Y.2d 529, 535-536, 498 N.Y.S.2d 119, 488 N.E.2d 1231). Thus, for example, in Matter of Lockett v. Juviler, 65 N.Y.2d 182, 490 N.Y.S.2d 764, 480 N.E.2d 378, rev'g 102 A.D.2d 869, 477 N.Y.S.2d 37, a trial judge vacated a special plea of "not responsible by reason of mental disease or...