People v. Christensen

Decision Date03 August 2010
Citation906 N.Y.S.2d 301,77 A.D.3d 174
PartiesIn the Matter of PEOPLE of State of New York, petitioner-respondent, v. Francis G. CHRISTENSEN, etc., appellant, et al., respondent.
CourtNew York Supreme Court — Appellate Division

Brenner, Gordon & Lane, Poughkeepsie, N.Y. (Marshall L. Brenner of counsel), and Mickey A. Steiman, Hyde Park, N.Y. (David L. Steinberg of counsel), for appellant (one brief filed).

Paul M. Salvino, Albany, N.Y., for petitioner-respondent.

Duffy & Duffy, Uniondale, N.Y. (Michael A. Santo of counsel), for New York State Magistrates Association, amicus curiae.



Many district attorneys of counties in New York State, when faced with inadequate resources, have lawfully delegated their authority to prosecute Vehicle and Traffic Law (hereinafter VTL) cases to the police agencies which issue the tickets for those offenses. One such police agency, the Division of New York State Police (hereinafter the Division), adheres to a policy against plea bargaining. On this appeal, we are asked to consider whether a trial court may, in the interest of justice, accept a defendant's plea of guilty to a lesser-included offense over the objection of the People in a case prosecuted by the Division. We conclude that, while we are sympathetic to the burden imposed on the courts by any blanket policy against plea bargaining a certain class of offenses, the trial courts are without authority to offer a defendant a plea to a reduced charge without the consent of the People. We also conclude that a district attorney may properly delegate authority to the Division to represent the People in a CPLR article 78 proceeding to challenge a trial court's acceptance of a plea of guilty over the People's objection in a case prosecuted by the Division.

Factual and Procedural Background
The District Attorney's Delegation and the Division's Policy Against Plea Bargaining

The Dutchess County District Attorney, William V. Grady (hereinafter the District Attorney), has a longstanding practice of delegating the prosecution of offenses under the VTLto, inter alia, the Division. In a letter to the Division dated December 30, 2005, the District Attorney defined the scope of the delegation for all such cases toinclude "the recommendation of bail on arraignment, if appropriate; preparation and filing of supporting deposition; preparation and filing of motions and answers to motions; trial of the case including the right to call and cross examine witnesses and the right to set standards with respect to permissible plea bargaining." The District Attorney further explained that the delegation was deemed necessary because his limited staff of assistant district attorneys could not possibly handle the thousands of VTL cases prosecuted in local Dutchess County courts.

At the time of this delegation, the Division, by internal Regulation 8A13 (hereinafter the Regulation), prohibited New York State Police Troopers (hereinafter Troopers) from engaging in plea bargaining of VTL offenses. The Regulation provides:

"Except in accord with Instructions concerning the reduction of a driving while intoxicated traffic charge, a [Trooper] shall not request or solicit a reduction in traffic offenses or in any way become involved in reducing such offenses or in seeking reductions in penalties assessed for such offenses."

In a letter to the District Attorney dated March 1, 2006, the Division's counsel acknowledged that enforcement of the Regulation had "eroded" largely because, during court proceedings, the "judges and prosecutors expected, depended [upon] and, in many cases, directed [Troopers] to meet with motorists they cited and strike a 'bargain' for disposition of the case, often in a private setting away from the courtroom." The Division found "this practice to be contrary to sound public policy for ethical, operational and fiscal concerns," and thus, the Superintendent of the Division (hereinafter the Superintendent) determined that the Regulation must be strictly enforced:

"[W]e believe that there is an inherent outward appearance of unfairness and duress when a motorist is forced to plea bargain his or her case with the arresting officer, the very same officer who stands as his or her accuser, and also as the primary prosecution witness ... The result can be the perception of favoritism, prejudice or, even worse, bribery.
"Accordingly, many motorists forced to plea bargain under these circumstances have sent letters of accusation or complaint to [the Division] as well as toother elected officials. We firmly believe that equitable considerations dictate that an accused motorist should have the opportunity in the court adjudication process to discuss and negotiate [his or her] case with an independent prosecutor, and not be required to negotiate with the arresting officer."

Counsel for the Division further noted that pleas of "not guilty" had escalated over the past decade, causing a dramatic rise in Division overtime for court appearances, during which Troopers were rarely called to testify but routinely appeared in lieu of the prosecutor to obtain dispositions by plea bargaining, a duty which, the Division believed, should be the responsibility of a prosecuting attorney. The Division's counsel, thus, informed the District Attorney that a policy of "renewed enforcement" of the Regulation would be implemented effective September 1, 2006 (hereinafter the Policy). The Policy would not affect court appearances by Troopers for the purpose of testifying or trying cases if so delegated.

By memorandum dated March 9, 2006, the Superintendent informed "All Members" of the Division that he had communicated with district attorneys statewide regarding the Policy and that Troopers were expected to cooperate with and adhere to the Policy, effective September 1, 2006.In a subsequent memorandum dated August 28, 2006, the Superintendent wrote that any violation of the Regulation "will be handled as a Division level disciplinary action."

On three occasions since 2006, the New York State Legislature has passed bills which would amend the Executive Law to prohibit the Superintendent from making regulations limiting the ability of any Division member to enter into plea negotiations for traffic offenses. Each bill was vetoed by the respective governor then in office on grounds, inter alia, that the Division is entitled to prohibit plea bargaining to avoid the appearance of impropriety, favoritism, or corruption ( see 2008 N.Y. Senate-Assembly Bill S7273, A10471, Veto Message No. 80; 2007 N.Y. Senate-Assembly Bill S3445, A6505, Veto Message No. 95; 2006 N.Y. Senate-Assembly Bill S7354, A10710-A, Veto Message No. 390).

People v. Carol I. Sussman

On March 25, 2007, Carol I. Sussman was charged by simplified traffic information filed in the Town of Milan Justice Court (hereinafter the Town Court) with violating VTL 1180(b) for driving 78 miles per hour in a zone limitingthe speed to 55 miles per hour on the Taconic State Parkway in the Town of Milan. In a supporting deposition, Trooper Patrick J. Wisniewski averred that the charge was based on his "direct observation" and that the People intended to offer at trial Sussman's statement, "I was going 65." According to records of the Department of Motor Vehicles, Sussman, who was 71 years old at the time of the offense, had no previous violations on her driving record.

Sussman initially pleaded guilty as charged and subsequently sought to withdraw her plea and to enter a plea of not guilty. By notice dated April 9, 2007, the appellant, Town Justice Francis G. Christensen (hereinafter the Town Justice), accepted Sussman's plea of not guilty, set a trial date, and informed her that, "[e]ffective September 1, 2006, [the Division is] unable to enter into plea bargains, therefore, you must be prepared to go to trial."

Prior to trial, Sussman, through her counsel, moved pursuant to CPL 170.30(1) to dismiss the accusatory instrument in the interest of justice, or alternatively, for reduction of the charge from a six-point to a two-point violation, on the ground, inter alia, that the Policy deprives her of her constitutional right to equal protection under the law. She argued that, had the ticket been issued by a different police agency or if the matter had been prosecuted by the District Attorney, she would have been able to enter into a plea bargain, and that the Policy deprives the court of its authority to participate in plea negotiations.

In opposition, the People, through the Division's counsel, argued that Sussman had failed to demonstrate a compelling consideration under the statutory factors listed in CPL 170.40(1)(a)-(j) for discretionary dismissal in the interest of justice pursuant to CPL 170.30(1)(g). The Division further argued that equal protection was not implicated because Sussman had no constitutional right to a plea bargain, and the Policy was not based upon impermissible considerations. Nor does the Policy interfere with a court's authority to participate in plea bargaining because the court may accept a plea of guilty to a lesser-included offense only with the People's consent.

At oral argument before the Town Justice, the People, represented by the Division's counsel on the motion and by Trooper Wisniewski in the event of trial, refused to negotiate or discuss Sussman's request to plead guilty to a reduced charge. From the bench, the Town Justice declined to dismiss the accusatory instrument in theinterest of justice but reduced the charge andallowed Sussman to enter a plea of guilty to VTL 1110(a), failure to comply with a traffic control device. The court imposed a fine, which Sussman paid on August 20, 2007. At the request of the People, the Town Justice issued a written decision.

The Decision of the Town Court dated August 24, 2007

The Town Court denied Sussman's motion to dismiss in the interest of...

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