People v. Cooks

• Decision Date: 20 March 1986
• Citation: 500 N.Y.S.2d 503,67 N.Y.2d 100,491 N.E.2d 676
• Parties: , 491 N.E.2d 676 The PEOPLE of the State of New York, Respondent, v. Zain COOKS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 503

500 N.Y.S.2d 503

67 N.Y.2d 100, 491 N.E.2d 676

The PEOPLE of the State of New York, Respondent, v. Zain COOKS, Appellant.

Court of Appeals of New York.

March 20, 1986.

Keith G. Ingber, Monticello, for appellant.

Stephen F. Lungen, Dist. Atty. (Frank J. Labuda, Monticello, of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

If the plea proceeding record is sufficient to permit review of the issue on direct appeal, the sufficiency of the allocution cannot be collaterally reviewed in a CPL 440.10 proceeding. The order of the Appellate Division should, therefore, be affirmed.

I

On March 31, 1983, defendant pleaded guilty to one count of robbery in the second degree. Thereafter he wrote a letter to the County Court Judge who had taken the plea stating his desire to withdraw it and on April 21, 1983 appeared before the Judge. At both the plea and the subsequent hearing he was represented by a Legal Aid Society attorney.

At the April 21, 1983 proceeding defendant stated that he had been coerced, had not read the papers he signed (a waiver of indictment), and did not understand "the part about taking all my rights away." No mention was made of the ground presently urged: that he did not commit the crime to which he had pleaded guilty and that he had not admitted the elements of robbery, second degree, during the plea proceeding. The Judge refused to allow the plea to be withdrawn, pointing out that both the waiver and defendant's rights had been discussed with defendant and explained to him fully, and that he had simply changed his mind. Defendant was sentenced to a term of 2 1/2 to 7 1/2 years. A pro se notice of appeal to the Appellate Division was filed by defendant on the same day, April 21, 1983, but nothing further was done to perfect the appeal.

In April 1984, now represented by assigned counsel, defendant moved pursuant to CPL 440.10 and 440.20 to vacate the conviction on the new ground set forth above. The attorney's affidavit, citing People v. Pascale, 48 N.Y.2d 997, 425 N.Y.S.2d 547, 401 N.E.2d 904; People v. Warren, 47 N.Y.2d 740, 417 N.Y.S.2d 251, 390 N.E.2d 1175; and People v. Ebron, 87 A.D.2d 653, 448 N.Y.S.2d 514, stated that the motion was made in order to preserve defendant's right to appeal from the judgment of conviction.

The County Judge who took the plea having died, the motion came on before another Judge who, initially, set the matter for hearing but, after the People moved for reargument and defendant's counsel, in his answering affidavit, agreed that the matter could be decided on the plea minutes without a hearing, granted the motion to vacate. He found that defendant had consistently maintained that he had no idea that his companion intended to rob the business establishment until the act was in progress and that, therefore, the element of intent had not been established through defendant's own recital during the allocution (People v. Serrano, 15 N.Y.2d 304, 258 N.Y.S.2d 386, 206 N.E.2d 330).

The Appellate Division reversed, on the law, denied defendant's motion to vacate and reinstated the conviction. It held CPL 440.20 inapplicable because there was no issue concerning the propriety of the sentence. With respect to CPL 440.10, it held that the motion should have been denied because insufficiency of the allocution was not a ground set forth in CPL 440.10. The correct method for raising an issue concerning a claimed defect apparent from the record, it held, was by direct appeal from the judgment of conviction "which, in this instance, defendant chose not to perfect." (113 A.D.2d 975, 976, 493 N.Y.S.2d 646.)

In his submission to us, defendant's attorney, citing the holding in People v. Claudio, 64 N.Y.2d 858, 487 N.Y.S.2d 318, 476 N.E.2d 644, that the sufficiency of a guilty plea was "not preserved for appellate review because defendant neither moved to withdraw the plea before sentencing nor raised the issue by a motion to vacate the judgment of conviction," argues that had his CPL 440.10 motion been denied, his direct appeal would have been perfected and the sufficiency issue reviewed. Ironically, only because defendant prevailed on that motion could the Appella Division "consider him to have failed to perfect his appeal, refuse to consider the merits of this case, and reinstate his judgment of conviction."

II

We need not on the present record attempt to reconcile the language of the cases to which Criminal Term and defendant's attorney allude, ¹ nor need we determine that insufficiency of the plea allocution can never be raised in a CPL 440.10 proceeding as the Appellate Division memorandum suggests. ² For purposes of the present proceeding it is sufficient to note that dismissal of a CPL 440.10 motion is mandated by paragraphs (b) and (c) of subdivision (2) of that section when:

"(b) The judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal; or

"(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him".

The purpose of those provisions is to prevent CPL 440.10 from being employed as a substitute for direct appeal when defendant was in a position to raise an issue on appeal (CPL 440.10[2][b] ) or could readily have raised it on appeal but failed to do so (CPL 440.10[2][c]; see, People ex rel. Gibbs v. Vincent, 39 N.Y.2d 918, 386 N.Y.S.2d 405, 352 N.E.2d 592; Bellacosa, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 11A, CPL 440.10, p. 320). ³

Here defendant's answering affidavit on the People's motion for reargument conceded that no hearing was required because sufficient facts appeared on the record to establish, as he argued, the insufficiency of the plea allocution. In the face of...