People v. Colon

• Decision Date: 04 December 1980
• Parties: The PEOPLE of the State of New York, Respondent, v. Jorge COLON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 766

433 N.Y.S.2d 766

77 A.D.2d 370

The PEOPLE of the State of New York, Respondent, v. Jorge COLON, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 4, 1980.

Charles S. Lazarus, New York City, for defendant-appellant.

Timothy M. Ginn, of counsel (Mario Merola, Dist. Atty., attorney), for respondent.

Before BIRNS, J. P., and SULLIVAN, SILVERMAN, LYNCH and CARRO, JJ.

SILVERMAN, Justice.

The sole issue on this appeal is whether there was such an infirmity in the plea as to require us on appeal to vacate the plea.

Defendant was indicted for the crimes of murder in the second degree and criminal possession of a weapon in the second degree. It was undisputed that he intentionally shot his victim four times causing the victim's death. A negotiated plea covering both counts of the indictment was accepted, under which defendant pleaded guilty to the crime of manslaughter in the second degree. At the time of the plea, defendant made some statements indicating that he feared that the victim would try to kill him, and that indeed the victim had pulled out a shotgun. (Defendant admitted, however, that after he had taken the shotgun from the victim and put it out of the victim's reach, defendant kept on firing.) Obviously this gave rise to the possibility of the defense of justification, however unpromising.

However, it appears quite clearly that that defense was considered by the defendant and that the plea was taken with full knowledge on the part of everyone of the possibility of that defense and on the decision of defendant not to risk the other possibility of the jury rejecting that defense and finding him guilty of murder. An important factor in this decision was the fact that defendant was in any event guilty of the crime of possession of a weapon,-for which sentence could be seven years. Thus at the time of the plea, immediately after the defendant told his self-defense story, the court said:

In view of the plea negotiations which were had and the understanding of counsel which (sic) submitted a memorandum and in view of the fact that in any event the defendant could have been convicted of possession of a weapon certainly MR. EDELBAUM (defendant's attorney): Yes.

THE COURT: -possession in the third degree certainly allows a minimum sentence of, or allows the sentence rather up to seven years.

MR. EDELBAUM: Yes.

THE COURT: I will accept this plea.

At the time of sentence there was again discussion of the possibility of a defense of justification and his attorney said:

The problem in this case, your Honor, of course, is although the defendant claims self-defense that there was felonious possession of a firearm which is why your Honor knows there was a plea taken in this case.

There was no request to withdraw the plea in the trial court. See People v. Pascale, 48 N.Y.2d 997, 425 N.Y.S.2d 547, 401 N.E.2d 904; People v. Mitchell, App.Div., 432 N.Y.S.2d 183 (1980). Not until the appeal and our suggestion that the matter required further study and discussion by appellate counsel (75 A.D.2d 771, 428 N.Y.S.2d 6) was it argued that the plea was invalid.

This was obviously an Alford plea (No. Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162) under which a defendant who disclaims guilt may still plead guilty to a lesser offense rather than risk a jury's rejection of his defense, at least where there is some factual basis for the plea. See also People v. Serrano, 15 N.Y.2d 304, 310, 258 N.Y.S.2d 386, 206 N.E.2d 330. Here defendant, faced with a possible conviction for murder and a possible sentence of 25 years to life, and at best with a conviction for criminal possession of a weapon with a possible sentence of up to seven years, chose not to risk the murder conviction and to plead to the lesser offense of manslaughter second degree with a promise that the sentence would not exceed 12 years. (The ultimate sentence was 10 years.)

It does not matter that it was the attorney who made the explicit statements showing why the defendant was taking the plea rather than going to trial with his defense of self-defense. There is no requirement that the defendant shall himself admit to the underlying facts making out the crime. The Court of Appeals has explicitly rejected the requirement of "a uniform mandatory catechism of pleading defendants." People v. Nixon, 21 N.Y.2d 338, 353, 287 N.Y.S.2d 659, 234 N.E.2d 687. "The competency of counsel and the degree of actual participation by counsel, as well as his opportunity for and the fact of consultation with the pleading defendant, are particularly important. Indeed, if independent and good advice in the interest of the defendant is the goal, it is more important that he consult with competent counsel than that a harried, calendar-conscious Judge be the one to perform the function in displacement of the lawyer." Id. at 354, 287 N.Y.S.2d 659, 234 N.E.2d 687. "It should never be enough to undo a plea because of some omission in inquiry at the time of plea without a showing of prejudice." Id. at 355.

In People v. Francis, 38 N.Y.2d 150, 155-156, 379 N.Y.S.2d 21, 341 N.E.2d 540, the Court of Appeals said:

A plea is a bargain struck by a defendant and a prosecutor who may both be in doubt about the outcome of a trial.... In arriving at his bargaining position, a defendant may well calculate not only uncertainties in how a court may view the facts in his case but how it may view the applicability of law as well. On such matters, Judges themselves may often be expected to differ with one another, a factor to which the parties to plea bargaining need not to be taken to be oblivious. Where the court which accepts the plea has no reason to believe that the plea is unfair or inappropriate, the bargain becomes final. Unless there was unfairness in its negotiation or acceptance, the fact that a loophole might have been available to defendant is not sufficient grounds upon which to set aside the bargain made. The defendant here has not been shown to have been victimized by inherent unfairness, nor is it evident that the court should have perceived any.

In the present case, the trial judge had no reason to believe that the plea was unfair or inappropriate and, therefore, the bargain became final.

Further, as is permissible in the case of a negotiated plea, the crime to which defendant pleaded did not track...