People v. Francabandera

Decision Date28 March 1974
Citation310 N.E.2d 292,33 N.Y.2d 429,354 N.Y.S.2d 609
CourtNew York Court of Appeals Court of Appeals
Parties, 310 N.E.2d 292 The PEOPLE of the State of New York, Respondent, v. Leonard FRANCABANDERA, Appellant.

Stephen N. Shapiro, East Meadow, James J. McDonough and Matthew Muraskin, Mineola, for appellant.

William Cahn, Dist. Atty. (Henry P. DeVine, Mineola, of counsel), for respondent.

GABRIELLI, Judge.

The novel question posed in this case is whether defendant, suffering from retrograde amnesia so as to be unable to recall the events surrounding the crimes with which he is charged, is an 'incapacitated person' within the meaning of CPL 730.10 (subd. 1), Consol.Laws, c. 11--A, so as to be unfit to stand trial as the result of a mental defect which, he argues, deprives him of the capacity to assist in his own defense; and also whether the ruling that he is fit to stand trial which induced a guilty plea to a reduced charge, renders that plea involuntary thereby denying him due process and equal protection. He further argues that the indictment should be dismissed.

Defendant was indicted for attempted murder, reckless endangerment and possession of a dangerous weapon based on events occurring on June 15, 1971 in North Massapequa, New York. Evidence possessed by the District Attorney, consisting of civilian and police eyewitness descriptions of the event together with photographs, is to the effect that defendant, who appeared intoxicated, went to his car, withdrew a shotgun, and commenced firing at bystanders; he then returned to his car and withdrew a rifle which he fired at police as they arrived on the scene. At this point defendant was standing in a doorway and, in response to police demands to drop his weapon, he fired again this time blowing the windshield out of a police cruiser. The police officers then opened fire and one of the bullets struck defendant in the left eye and exited through his left ear. This ended the affray and, perhaps miraculously, left defendant with partial blindness, partial deafness, and the inability to recall anything which occurred after he was cleaning a gun at home and before he woke up in the hospital. The People concede that this amnesia is genuine. 1

Defendant moved for a determination whether he was fit to proceed to trial. CPL 730.10 (subd. 1) provides that: "Incapacitated person' means a defendant who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense.' Following appropriate examinations the court found that insofar as defendant's general mental state was concerned he was suffering from no mental disease or defect which would hinder him at trial except for the loss of memory. On this precise branch of the case there is no dispute. It was determined that he understood the charges against him and the question was narrowed to the point with which we are concerned, viz., could defendant assist in his defense if he could not recall the events constituting the charges against him? The court concluded that defendant should stand trial, that the District Attorney should supply defense counsel with all the relevant evidence, and that the safeguards set forth in Wilson v. United States, 129 U.S.App.D.C. 107, 391 F.2d 460, noted subsequently herein, should apply.

Upon the determination that he was fit to stand trial defendant decided to plead guilty to reckless endangerment, first degree, in satisfaction of the charges in the indictment. The court indicated to defendant that his sentence on this plea would not exceed four years. Before accepting the plea the court went to great lengths in laying a foundation to support the voluntariness of the plea. Witness' statements, furnished to the defendant, regarding the shootout were read into the record and photographs of the police vehicle allegedly shot up by defendant were introduced. The court's rationale in doing this was first, to furnish defendant with all available facts and, also, to indicate to him the degree and extent of evidence against him to support the charges in the indictment so that defendant, even though he could not remember the event, would be in no doubt that it happened and that he was the culprit. The court then explained to defendant the various rights he was waiving by foregoing a trial and then explained that 'you can plead guilty without admitting your guilt in a situation that you are placed in as long as you realize that that's what you are doing, that you are admitting your guilt. You are saying I'm guilty not because I remember it but because the evidence that has been presented to me indicates to me that I am guilty and I don't want to run that risk.' Defendant, having had continuing consultations with his attorney and family over an extended period of time, indicated that that was the basis on which he sought to plead whereupon, after several more searching questions by the court, the plea was accepted.

Defendant's arguments on appeal are correlative. His contention that he was unfit to stand trial as a matter of law under CPL 730.10 (subd. 1) leads to his other contention that, because of the order finding him fit, his guilty plea was forced and therefore involuntary. 2 These points, however, are but branches of the central issue, to wit, whether inability to remember the crucial events renders the defendant unfit to assist in his own defense as that incapacity is contemplated under CPL 730.10 (subd. 1) or under the due process or equal protection clauses; or even, perhaps, under the Sixth Amendment.

First, it would be useful to examine the nature of the plea which, in the context in which it was taken in this case, approaches the Nolo contendere concept operative in the Federal courts. Defendant here could not honestly confess his guilt because of his amnesia, but, nevertheless he found himself in a position, considering the overwhelming evidence against him, where a plea to a lesser charge seemed quite the prudent course. As stated by Mr. Justice White in North Carolina v. Alford, 400 U.S. 25, 36, 91 S.Ct. 160, 167, 27 L.Ed.2d 162; 'Implicit in the Nolo contendere cases is a recognition that the Constitution does not bar imposition of a prison sentence upon an accused who is unwilling expressly to admit his guilt but who, faced with grim alternatives, is willing to waive his trial and accept the sentence.' There is no doubt but that in this case, as in Alford where a guilty plea was also at issue, defendant's plea 'represents a voluntary and intelligent choice among the alternative courses of action open * * *. That he would not have pleaded except for the opportunity to limit the possible penalty does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice, especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant's advantage,' 400 U.S., at[33 N.Y.2d 435] p. 31, 91 S.Ct., at p. 164. The rule is no different in New York (People v. Nixon, 21 N.Y.2d 338, 287 N.Y.S.2d 659, 234 N.E.2d 687; People v. Foster, 19 N.Y.2d 150, 278 N.Y.S.2d 603, 225 N.E.2d 200).

The larger question here is not whether defendant knew what he was doing at the time he changed his plea to guilty (and he clearly knew what he was doing); but whether he was put into the position of having to plead guilty because of a mental condition which would have prevented him from assisting in his own defense at a trial. Although counsel raises formidable arguments in defendant's behalf, we are unwilling to hold that defendant suffered such incapacity as is contemplated under CPL 730.10 (subd. 1) or such actual incapacity as would deprive him of constitutional rights were he to go to trial.

Stripped to its core, defendant's argument is that no person can assist in his own defense, or, no lawyer can properly represent a client who is unable to furnish facts concerning the event charged against him such as names of witnesses, times, physical and mental condition, etc. Here, argues defendant, there is some evidence that he was intoxicated at the time of the shootout; yet he is unable to develop this so as possibly to use it for purposes of casting reasonable doubt on the intent element of the crimes charged in the indictment as would be permitted under section 15.25 of the Penal Law, Consol.Laws, c. 40. 3 And, it is argued, in other cases perfectly good alibi claims would be lost to counsel as they are lost to the defendant were we to rule that amnesia is not an incapacitation. (This assumes, of course, that for some reason or other genuine alibi witnesses would not step forward of their own volition.)

There is absolutely no authority that CPL 730.10 (subd. 1) contemplates any situation other than defendant's mental imbalance at the time of trial. Admittedly, that provision can literally be read to mean that amnesia, a persisting condition, could constitute a present defect which affects the defendant's ability to assist in his own defense. However, we are not prepared to hold that the Legislature had anything in mind in enacting this provision other than the situation where the defendant, because of a current inability to comprehend, or at least a severe impairment to that existing mental state, cannot with a modicum of intelligence assist counsel. This interpretation is borne out in the Practice Commentary attending CPL 730.10 where the seminal case Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 is quoted, thus: 'the 'test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him. '' (Denzer, Practice Commentary, McKinney's Consol.Laws of N.Y., Book 11A, CPL 730.10, p. 332). Defendant here was perfectly rational and sane at the time he would have stood trial had he so opted....

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