People v. Carthen

Decision Date06 December 1996
Citation171 Misc.2d 754,655 N.Y.S.2d 245
PartiesThe PEOPLE of the State of New York, Plaintiff, v. Michael CARTHEN, Defendant.
CourtNew York Supreme Court

Randall M. Cutler, New York City, for defendant.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Phyllis Chu, of counsel), for plaintiff.


The defendant moved this court, inter alia, pursuant to CPL 220.60 for an order permitting him to withdraw his plea of guilty. The decision and order are rendered herein as follows:


The defendant was arrested on March 20, 1993, in Kings County and charged in a felony complaint with one count of Criminal Possession of a Weapon in the Second Degree (Penal Law 265.03); one count of Criminal Possession of a Weapon in the Third Degree (PL 265.02-4); Resisting Arrest (PL 205.30); and Menacing in the Third Degree (PL 120.15). He was arraigned in local criminal court on March 20, 1993 and released on his own recognizance. The case was adjourned to March 31, 1993 in Criminal Court Part AP-1. The Grand Jury of the County of Kings voted a True Bill. An indictment was filed on April 5, 1993. The indictment charged the defendant with one count of Criminal Possession of a Weapon in the Second Degree (PL 265.03); one count of Criminal Possession of a Weapon in the Third Degree (PL 265.02-4); and one count of Menacing in the Second Degree (PL 120.14). The defendant was arraigned in Supreme Court, Part ACA 360 on April 6, 1993. The arraignment court ACA 360 continued the securing order of recognizance of the local criminal court. The case was adjourned to Criminal Term, Part 6, for further proceedings. Defendant was represented at arraignment by the Legal Aid Society. Prior to defendant's arraignment, defendant was interviewed by a representative of the Criminal Justice Agency. Defendant gave his name as Michael Carlton and told the interviewer that this was his first arrest and that he had no prior convictions or open cases.

On October 1, 1993, defendant pleaded guilty in Criminal Term, Part 6 to Attempted Criminal Possession of a Weapon in the Second Degree (PL 110.00/265.03). In exchange the People made a sentence recommendation of thirty days incarceration and five years probation. At the time the plea was taken the defendant was represented by the Legal Aid Society. He has since retained private counsel to prosecute the application now before the court. At the time the plea was accepted, neither the court nor the People were aware that defendant had prior felony convictions in North Carolina.

The defendant was advised that as a result of this plea and conviction, in the event of a future felony conviction he would be subject to increased or additional punishment as a second felony offender.

Defendant reported to Probation for the PSI interview on October 20, 1993. Probation had not yet received defendant's interstate criminal history. Defendant stated to Probation that he had never previously been arrested anywhere. Prior to the sentence date of November 10, 1993, the Department of Probation received defendant's criminal history, which revealed the prior felony convictions in North Carolina, to wit, Involuntary Manslaughter, Assault With A Deadly Weapon and Sale of Cocaine. Based on the nature of his prior convictions and the defendant's lack of forthrightness regarding the extent of his criminal record, the Department of Probation evaluated him as a dangerous and disingenuous individual. Probation's recommendation was that incarceration was mandatory because defendant appeared to be a second felony offender.

On the sentence date, November 10, 1993, the court received the pre-sentence report becoming aware for the first time of defendant's convictions in North Carolina. These convictions appeared to render defendant a second felony offender for the instant conviction. No predicate felony statement was filed by the People at that time. The defendant appeared in court that morning. Prior to his case being called, his attorney advised him that the court had knowledge of his previous convictions in North Carolina. Defendant thereupon left the court. He was not present when the case was called. A bench warrant was issued at approximately 4:30 p.m.

On March 14, 1996, twenty eight months after absconding from the court, defendant was returned involuntarily on the warrant. The People determined that defendant was a predicate felon based on the North Carolina convictions. On June 20, 1996, the People filed a predicate felony statement. On September 18, 1996 defendant filed the instant motion.


Is a predicate/violent felon who misrepresents his status in order to avail himself of a favorable plea disposition and sentence entitled to have his plea vacated upon the discovery of his true prior criminal history which renders the promised sentence illegal as a matter of law?



In the case at bar the defendant argues that he is entitled to be restored "to the position he would have been in at the present date and time, had he never made the plea agreement." He wants this court to declare his plea of guilty a nullity. The defendant claims that the plea of guilty was induced by a material misrepresentation of fact by the prosecution in that the People knew or should have known of the defendant's prior felony convictions out of state barring the imposition of the recommended sentence.

This court is being asked to apply principles of equitable remedy in contract law upon the theory that the defendant justifiably relied to his detriment upon a material misrepresentation by the People. Therefore, defendant argues, the contract (plea) should be canceled and the defrauded party (defendant) should be restored his consideration, to wit, returned to the position he was in prior to entering into the contract. Defendant cites several cases in support of his position, to wit, Gervasio v. DiNapoli, 134 A.D.2d 235, 520 N.Y.S.2d 430 (2d Dept.1987); Goins v. Atwood, 204 A.D. 439, 197 N.Y.S. 781 (1923); Slater v. Slater, 240 N.Y. 557, 148 N.E. 703 (1925) and Copeland v. Hugo, 221 A.D. 779 223 N.Y.S. 642. These cases involving the application of equitable remedies in contract law are inapposite in plea bargain situations. His reliance on equity and the common law is misplaced.

"Application to plea negotiations of contract law is incongruous. The strong public policy of rehabilitating offenders, protecting society, and deterring other potential offenders presents considerations paramount to benefits beyond the power of individuals to 'contract'." People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784 (1974).

In any event, his points of argument are untenable and indefensible. It is blatantly disingenuous for a party to allege fraud in the inducement when he was in a better position to know the truth of the fact allegedly misrepresented.

Clearly, a motion to withdraw a guilty plea must be based upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea (People v. Greene, 208 A.D.2d 950, 618 N.Y.S.2d 412 (2nd Dept.1994); People v. DeJesus, 199 A.D.2d 529, 606 N.Y.S.2d 255 (2d Dept.1993)), and defendant should be afforded a reasonable opportunity to advance his claims. People v. Tinsley, 35 N.Y.2d 926, 365 N.Y.S.2d 161, 324 N.E.2d 544 (1974).

In the case at bar, the defendant has had ample opportunity to state the basis for his application to withdraw his plea, therefore no formal evidentiary hearing was required to be held by this court. People v. Frederick, 45 N.Y.2d 520, 410 N.Y.S.2d 555, 382 N.E.2d 1332 (1978); People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 (1993); People v. Lisbon, 187 A.D.2d 457, 589 N.Y.S.2d 527 (2d Dept.1992).

The basic rule is clear, namely, if a guilty plea is induced by fraud and misrepresentation, the defendant will not be held to the plea. People v. Selikoff, supra. Significantly, the reverse applies with equal force; the courts will not countenance fraud by a defendant to obtain acceptance of a plea. Id.

The defendant's allegations are unsubstantiated. There is nothing on this case record to indicate that the People were aware of the defendant's prior felony convictions, nor to warrant a finding that they acted in bad faith. The defendant's contention that the People would negotiate a plea bargain in the knowledge that it would be doomed to fail is illogical and absurd.

Interestingly, in asking the court to charge the People with constructive knowledge of his prior felony conviction, the defendant is acknowledging that the People did not have actual knowledge of his predicate status. This further weakens his claim that the People perpetrated a fraud on him.

A defendant's contention that the People have an affirmative obligation to procure her complete interstate criminal history as a condition precedent to plea bargaining negotiations would, under other circumstances, call for serious consideration by the court. In the case at bar, however, in light of the defendant's deceptive and misleading conduct, to wit, use of an alias and misrepresentation of his true criminal history to officials of the court, such contention lacks substance, merit and plausibility. Accordingly, defendant has failed to advance any substantial basis to support a claim of fraud by the People in misrepresenting to defendant his own criminal history.


Our State's jurisprudence in the area of plea bargains is fertile. The premises upon which the law in this area is based are sound, practical and fair. The basic tenets are clear and straightforward. Disposition of criminal charges after plea negotiations is an essential component of the administration of justice. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30...

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  • People v. Dunn
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    • November 5, 1997 the appropriate precedent and will not equivocate nor elevate form over substance. As this court observed (People v. Carthen, 171 Misc.2d 754, 763-764, 655 N.Y.S.2d 245): "An inflexible adherence to the proposition that failure or inability to fulfill a promise limits the court to one of......

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