People v. Davis
| Decision Date | 26 September 1986 |
| Citation | 133 Misc.2d 606,507 N.Y.S.2d 577 |
| Parties | The PEOPLE of the State of New York v. Pierre DAVIS, Defendant. |
| Court | New York Supreme Court |
Robert H. Morgenthau, Dist. Atty. (Alan Buonpastore, of counsel); New York City, for the People.
Andrew Robinson, Legal Aid Soc., New York City, for defendant.
Whether omission of an essential element ("force") of a felony (robbery in the second degree--Penal Law 160.10) by defendant, represented by counsel, and the court during the factual allocution of a guilty plea to a prior felony conviction is legally sufficient as the constitutional basis for a predicate felony sentence? An issue of first impression in the First Department.
On November 30, 1983, defendant, Pierre Davis ("Davis"), was indicted for grand larceny in the third degree (Penal Law 155.30[5] ). Davis was tried before this court and a jury, which rendered a guilty verdict on May 23, 1985.
Upon sentencing, the People filed a predicate felony statement. Under C.P.L. 400.21, Davis, however, challenged the constitutionality of his previous conviction. A hearing was held on July 11, 1985, pursuant to C.P.L. 400.21, subd. (7)(a), to determine the constitutionality of defendant's guilty plea. This written Decision codifies and amplifies this Court's Decision, dictated into the record on August 15, 1985, upholding the defendant's constitutional challenge. This court sentenced Davis, as a first felony offender, to six (6) months in prison and a four and one-half (4 1/2) year probationary term.
Previously, on January 18, 1977, in Supreme Court, Bronx County, Trial Term, Part 28 (Tonetti, Lawrence, J.), the defendant pleaded guilty to robbery in the second degree (Penal Law 160.10). Such plea covered the entire indictment numbers 2857/75 and 970/76.
Prior to allocution, the following interchange took place between the prosecutor, Mr. Scharf, and the Court:
Mr. Scharf: Your Honor, the defendant and his accomplice robbed Joseph Smith on October 15th, '75, and they used knives and they took money from him.
The Court: Yes.
Mr. Scharf: The People recommend that the plea be accepted. (Tr. p 3)
The Court's factual allocution of the defendant included the following:
The Court: Do you admit that on October 15, 1975, together with another man, that you stole some property from one Joseph Smith here in Bronx County, do you admit that?
The Defendant: Yes. (Tr. pp 6-7) but apparently omitted the fact that the defendant wielded a knife or used force in the commission of the crime.
In support, defendant submits that the allocution was factually insufficient because it did not contain a statement of affirmation by the defendant that "force", an essential element of the crime of robbery in the second degree, was used or threatened during the crime. Additionally, Davis contends the allocution was factually insufficient as to the lesser included offense of grand larceny in the third degree in that there was no statement or affirmation by the defendant that any property was taken from the complainant's person.
In opposition, the People submit that, according to applicable case law, the allocution was sufficient absent a statement by the defendant on the use of force. The People further contend that the context of the allocution establishes that Davis knowingly pleaded guilty to robbery with the use of force, in that, during the pre-allocution colloquoy, the Prosecutor described for the Court the crime where the defendant and his accomplice "used knives and they took money from [the victim]", supra.
The content of a defendant's allocution has been the subject of frequent judicial review, based upon: (1) waiver of defendant's certain constitutional rights and (2) defendant's statement of the factual circumstances underlying the crimes charged.
There is a general principle that the entire process of plea bargaining and admission of guilt by defendant must be a voluntary and intelligent choice among alternative courses of action (North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 [1970] ). Generally, the validity of any waiver of rights must be tested according to constitutional standards (People v. Parker, 57 N.Y.2d 136, 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313 [1982]; Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 [1938] ).
Defendant need not be separately advised of and specifically waive all of his constitutional rights to (1) trial by jury, (2) the privilege against self-incrimination and (3) the right to confront one's accusors (People v. Harris, 61 N.Y.2d 9, 18, 471 N.Y.S.2d 61, 459 N.E.2d 17 [1983], citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ), if when the plea is entered, the defendant sufficiently understands the nature of the charges, his right to trial by jury, the elements of the offense and the range of permissible offenses so as to "knowingly, voluntarily and intelligently" relinquish his constitutional rights upon the plea. (People v. Harris, 61 N.Y.2d supra at 17-18, 471 N.Y.S.2d 61, 459 N.E.2d 170; see also, People v. Sargent, 100 A.D.2d 978 [2d Dept.1984] ). The plea cannot be voluntary unless the defendant obtains "notice of the true nature of the charge against him". (Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257, 49 L.Ed.2d 108 [1976], citing Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859 [1941] ).
Although the Court of Appeals in People v. Harris, supra, required that the defendant fully understand the connotation of the plea (People v. Harris, supra 61 N.Y.2d at 18-19, 471 N.Y.S.2d 61, 459 N.E.2d 17, citing Boykin v. Alabama, supra), it did not give an explanation how the defendant would explicitly waive the enumerated constitutional rights. In five (5) of the six (6) cases consolidated under Harris, the Court upheld the pleas determining that, despite the lack of specific waivers of all the described constitutional rights, the plea record revealed that each defendant understood the consequences of the plea, entered the plea voluntarily and "acknowledged" or "admitted" the facts underlying the offenses.
In noting the defendant's recitation of the facts and by requiring that the defendant understand the elements underlying the crime, Harris endorses a line of cases stemming from People v. Serrano (15 N.Y.2d 304, 258 N.Y.S.2d 386, 206 N.E.2d 330 [1965] ), which mandated that the requisite elements of the crime appear in defendant's recitation. Thereby, on this point, Harris undermines, if not overrules, the continued vitality of People v. Nixon, 21 N.Y.2d 338, 287 N.Y.S.2d 659, 234 N.E.2d 687 [1967], consolidating People v. Fooks, 21 N.Y.2d 338, 287 N.Y.S.2d 659, 234 N.E.2d 687, cert. denied sub nom Robinson v. New York, 393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed.2d 709 [1969].
Although People v. Nixon and People v. Serrano analyzed the validity of guilty pleas only in the context of attempts to directly set aside a current conviction, the general principles enunciated therein also are applicable to the context of a predicate felony sentencing hearing (People v. Harris, 61 N.Y.2d supra at 16-17, 471 N.Y.S.2d 61, 459, N.E.2d 17, citing People v. Nixon, 21 N.Y.2d supra at 353 and 355, 287 N.Y.2d 659, 234 N.E.2d 687, for the general proposition that a ritualistic catechism of pleading defendant's constitutional rights is not required). Further, the established principle that an attempt to set aside a conviction upon a guilty plea will fail in an appellate court if the issue(s) was (were) not raised and preserved in the Court of first instance by a pre-sentence motion to withdraw the plea (C.P.L. 220.60[3] ) or post-sentence motion to vacate the judgment of conviction (C.P.L. 400.21) (see, People v. Claudio, 64 N.Y.2d 858, 487 N.Y.S.2d 318, 476 N.E.2d 644 [1985]; People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 60 N.Y.2d 636 [1983] ), is not applicable in the predicate felony sentencing situation (People v. Harris, supra at 16, 471 N.Y.S.2d 61, 459 N.E.2d 170).
While the People have the burden of proving beyond a reasonable doubt the existence of a previous felony conviction, the defendant must prove facts that establish that such conviction was unconstitutionally obtained (People v. Harris, supra at 15, 471 N.Y.S.2d 61, 459 N.E.2d 170; C.P.L. 400.21, subd. [7][a] and [b] ).
It must be emphasized that, in each situation, the consequences of an unfavorable review of the plea allocation is distinct and distinguishable, in fact and law. If a plea is not upheld upon the motion to set aside an original conviction, then that conviction is overturned and defendant is at liberty. In contrast, if the plea upon a prior conviction is not upheld in the predicate sentencing situation, the consequence is a shorter sentence, as a first (instead of a predicate or persistent) felon, upon the subsequent conviction.
This Court does not seek to penalize society by an unreasonably narrow application of constitutional principles in the original conviction situation. These resulting penalties are the costs of re-prosecuting the defendant a second time and the ensuing delay by the eventual appeal which would deny fair, swift and certain justice, under an administrative cost-benefit analysis. Further, this Court decision does not, by content or consequences, increase the fear that successful challenges of plea convictions after guilty pleas will unravel the entire criminal justice system. Society is not so penalized nor is the plea bargaining system so threatened in the predicate sentencing (second or third conviction) situation by simply requiring that the Court carefully enforce a defendant's constitutional right during a guilty plea allocution.
The First and Second Departments have rendered divergent opinions on the necessity for a complete factual allocution by...
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People v. Davis
...the inadequacy of the 1977 plea fully justified the trial court's sentencing of the defendant as a first felony offender. (See, 133 Misc.2d 606, 507 N.Y.S.2d 577.) ...