People v. Daly

• Citation: 33 Misc.3d 963,2011 N.Y. Slip Op. 21371,932 N.Y.S.2d 845
• Parties: The PEOPLE of the State of New York, Plaintiff,v.Eric W. DALY, Defendant.
• Decision Date: 21 October 2011
• Court: New York Criminal Court

33 Misc.3d 963
932 N.Y.S.2d 845
2011 N.Y. Slip Op. 21371

The PEOPLE of the State of New York, Plaintiff,
v.
Eric W. DALY, Defendant.

Criminal Court, City of New York,New York County.

Oct. 21, 2011.

[932 N.Y.S.2d 846]

Lance Lazzaro, Esq., for the Defendant.Cyrus Vance, Jr., District Attorney, New York County, (Cory Jacobs, of Counsel), (Ricardo Rodriguez, Legal Intern), for the People.FELICIA A. MENNIN, J.

[33 Misc.3d 964] The defendant, Eric. W. Daly, seeks to withdraw his pleas of guilty to two separate charges of Criminal Possession of a Weapon in the Fourth Degree (Penal Law [“PL”] § 265.01[1] ), entered by this Court on June 30, 2011.¹ The charges against the defendant arose out of two separate incidents, which occurred less than one month apart on, respectively, December 10, 2010 and January 7, 2011. On each occasion, among other things, defendant was charged with possessing a gravity knife. During the period from January 2011 through June 2011, the defendant appeared in court on three occasions, each time represented by his own, privately-retained attorney.

At the court appearance on June 30, 2011, there was an extended colloquy on the record between the defendant's retained attorney, the prosecutor, and the Court. During that colloquy, the prosecution had initially recommended a jail/probation split sentence on a plea to the charge on each docket. Defense counsel had requested a term of probation from the Court. The prosecutor ultimately amended his recommendation for sentence to a term of probation with community service. At that time, the defendant, through his attorney, indicated that he wished to plead guilty. The colloquy was followed by a lengthy allocution of the defendant by the Court at which time the defendant plead guilty to two separate charges of Criminal Possession of a Weapon in the Fourth Degree in full satisfaction of the two dockets. Sentencing is pending.

[33 Misc.3d 965] The defendant has moved for an order permitting him to withdraw these guilty pleas pursuant to CPL 220.60(3). The People oppose this motion. CPL 220.60(3) authorizes the Court to allow a defendant to withdraw a guilty plea under the following circumstances:

At any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty to the entire indictment or to part of the indictment, or a plea of not responsible by reason of mental disease or defect, to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored.

A guilty plea generally “marks the end of a criminal case, not a gateway to further litigation.” People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755 (1985). When a defendant files a motion to withdraw his guilty plea, he “should be afforded reasonable opportunity to present his contentions.” People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 (1974). Nevertheless, a guilty plea should not be disturbed if “it was entered voluntarily, knowingly and intelligently.” People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 (1993);

[932 N.Y.S.2d 847]

People v. Infante, 84 A.D.3d 581, 922 N.Y.S.2d 777 (1st Dept. 2011). Stated another way “a [guilty] plea may not be withdrawn without some evidence or claim of innocence, fraud or mistake.” People v. Anderson, 270 A.D.2d 509, 510, 704 N.Y.S.2d 324 (3d Dept.), lv. denied 95 N.Y.2d 792, 711 N.Y.S.2d 160, 733 N.E.2d 232 (2000).

The defendant has failed to put forth any legally cognizable basis for withdrawal of his two guilty pleas. The sole basis proffered for withdrawal is that the Court's allocution of him at the time he offered his guilty pleas failed to establish from his mouth an essential element of the crime of Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01(1)—the operability of the gravity knife. The alleged weapon in each case, a “gravity knife,” is defined in Article 265 as “any knife which has a blade released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” PL § 265.00(5).

It is true that the Court did not specifically ask the defendant whether the blade of each knife, which he admitted possessing, could be released from the handle and locked in a straight position by the force of gravity or application of centrifugal force; nor did the defendant make any such statement. However, as the minutes of the guilty plea show, the defendant[33 Misc.3d 966] did, when asked by the Court whether the knives were “gravity knives,” admit that they were.

The defendant cannot credibly argue that he was ignorant of what, by law, constitutes a “gravity knife.” Each of the accusatory instruments, which were served upon the defendant at his arraignments, clearly alleged that a police officer had (1) successfully opened the knife and locked the blade with one hand and (2) characterized each knife as a “gravity knife.” Such allegations, along with the allegation that the defendant possessed the knife constitutes a prima facie case of Criminal Possession of a Weapon in the Fourth Degree. See People v. Jouvert, 50 A.D.3d 504, 856 N.Y.S.2d 84 (1st Dept.) lv. denied 11 N.Y.3d 790, 866 N.Y.S.2d 616, 896 N.E.2d 102 (2008); People v. Birth, 49 A.D.3d 290, 853 N.Y.S.2d 317 (1st Dept.) lv. denied 10 N.Y.3d 859, 860 N.Y.S.2d 486, 890 N.E.2d 249 (2008). Moreover, defendant was charged with a second gravity knife offense just one month after he had first been charged with that offense, had been presented with the accusatory instruments in both cases, and was represented by counsel of his choice in court in both cases. It is reasonable to infer from these facts that if the defendant had been ignorant of the risk of arrest for possession of such...