People v. Francis

Decision Date02 December 1975
Citation379 N.Y.S.2d 21,38 N.Y.2d 150,341 N.E.2d 540
Parties, 341 N.E.2d 540 The PEOPLE of the State of New York, Respondent, v. Charles FRANCIS, Appellant.
CourtNew York Court of Appeals Court of Appeals

Lawrence Hochheiser, Brooklyn, for appellant.

Nicholas Ferraro, Dist. Atty. (Martin L. Bracken, Kew Gardens, of counsel), for respondent.


We are here presented with the question of whether a Judge, in accepting a plea of guilty to a class E felony, where defendant has been charged with a class D felony, must warn the defendant that the law under which he has been charged is ambiguous and might support only a misdemeanor charge.

Defendant was arrested for carrying a gun and ammunition while working at his job in the post office at Kennedy Airport. An informer's tip led police to defendant; spotting a bulge in his clothing they removed the gun from his person, and a further search revealed the ammunition. In court, defendant did not deny any of these facts. He made no motion to dismiss the indictment nor any other protest. He had counsel.

The law under which he was charged makes possession of a gun and ammunition a class D felony unless the possession occurs in 'such person's home or place of business', in which case the offense is categorized as a misdemeanor. (Penal Law, § 265.05, subd. 2, renumbered § 265.02, subd. 4 by L.1974, ch. 1041.) The term 'place of business' had not at the time been definitively interpreted, but some lower court cases had held that it applies to such small business proprietors as taxi drivers who are responsible for the safety of their vehicles. (People v. Santana, 77 Misc.2d 414, 354 N.Y.S.2d 387; People v. Anderson, 74 Misc.2d 415, 344 N.Y.S.2d 15; People v. Santiago, 74 Misc.2d 10, 343 N.Y.S.2d 805.)

Nevertheless, defendant urged, for the first time on appeal, that the Judge had an absolute duty to warn him that he might qualify for the misdemeanor category before accepting his plea to the class E felony of attempted possession, which resulted in a six-month sentence. We do not agree.

In delineating our reasons, however, it is first necessary to state that we do not today decide the question of whether the place of business exception should apply to one in defendant's position. The Appellate Division, in affirming defendant's conviction, held that it did not. The two Judges who dissented did so on that issue. The majority, in its discretion, also reduced the defendant's sentence to time already served. We affirm the order, but not for the reasons stated in either opinion.

We focus, rather, on defendant's allegation that the Judge who accepted his plea was under a duty to inquire as to whether defendant knew that the law might be capable of an interpretation more favorable to him than his plea was, for, if defendant is incorrect in that assertion, then his plea was voluntary and fair, and we may not review it. (See McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 25 L.Ed.2d 763; Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747; Boykin v. Alabama, 395 U.S. 238, 242--243, 89 S.Ct. 1709, 23 L.Ed.2d 274; Tollet v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235; People v. Lynn, 28 N.Y.2d 196, 201--202, 321 N.Y.S.2d 74, 78, 269 N.E.2d 794, 796; People v. Nicholson, 11 N.Y.2d 1067, 230 N.Y.S.2d 220, 184 N.E.2d 190, cert. den. 371 U.S. 929, 83 S.Ct. 300, 9 L.Ed.2d 237; People v. Schiskey, 39 A.D.2d 608, 330 N.Y.S.2d 943.)

In doing so, we are well aware that the acceptance of pleas is an area fraught with difficult problems and that a simplistic reliance on the presence of counsel is not a sufficient solution. (See, particularly, People v. Nixon, 21 N.Y.2d 338, 287 N.Y.S.2d 659, 234 N.E.2d 687, cert. den. Sub nom. Robinson v. New York, 393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed.2d 709; see, also, American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty, Feb., 1968, especially § 1.5--1.7; Rule 11, Federal Rules of Criminal Procedure; Note, The Guilty Plea as a Waiver of 'Present but Unknowable' Constitutional Rights: The Aftermath of the Brady Trilogy, 74 Col.L.Rev. 1435.)

Through all of the considerations of the court's role in accepting pleas of guilty, both in the commentaries and in our own case law, however, there runs a thread of principle which may be used for guidance. And though the situations presented by various defendants' cases have differed, we find that the principle involved remains constant. Simply put, we have held that the duty of a Judge who accepts a plea is to be conditioned by the circumstances of the specific case; it is not an absolute duty. (People v. Nixon, 21 N.Y.2d 338, 353--355, 287 N.Y.S.2d 659, 670, 234 N.E.2d 687, 695, Supra.)

Among the circumstances which might alert a Judge to the fact that the defendant's plea is inappropriate are the following:

Evidence of a dispute on the facts. In People v. Serrano 15 N.Y.2d 304, 258 N.Y.S.2d 386, 206 N.E.2d 330, after the prosecutor stated his version of the facts, defendant gave a version which, if true, cast considerable doubt on the presence of sufficient intent to support a conviction for murder in the second degree. A plea to manslaughter might have been more appropriate. The Judge, having decided that he did not find defendant's version credible, let him plead to the murder count. We reversed, holding that the Judge had sufficient notice as to the existence of possible unfairness so that he ought to have inquired further. We also held that if, upon warning and further inquiry, the defendant still wished to avail himself of the offered plea, the court could accept it. (See, also, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.) In the present case, the defendant did not dispute the facts as presented by the prosecution.

Evidence of an incorrect charge on the fact of the indictment. In People v. Englese, 7 N.Y.2d 83, 195 N.Y.S.2d 641, 163 N.E.2d 869, defendant was indicted for a felony. The underlying facts specified in the indictment clearly did not support more than a misdemeanor. We deemed the inconsistency sufficient notice to the court that possible unfairness existed so that further inquiry was warranted. In the present case, the indictment for felonious possession specified only appropriate and supportive facts; it did not state that he had committed the crime in a 'place of business'.

Evidence of inadequate representation by counsel. In People v. Nixon, 21 N.Y.2d 338, 287 N.Y.S.2d 659, 234 N.E.2d 687, Supra, four separate defendants' cases were considered by our court. We reversed one, that of defendant Lang, noting, among other things, that he had been convicted in a crowded city court where defendants' opportunities to consult with their assigned counsel were notoriously scanty; Lang himself presented particular evidence of such a problem. We need not even tarry to comment on the obvious warning signs the court receives when defendant has no counsel. (People v. Gina M.M., 37 N.Y.2d 880, 372 N.Y.S.2d 212, 334 N.E.2d 11; People v. Seaton, 19 N.Y.2d 404, 280 N.Y.S.2d 370, 227 N.E.2d 294.) Except insofar as his counsel did not call the ambiguity to the court's attention, the defendant in the present case does not allege that he received inadequate representation, nor were there any circumstances which would suggest such a conclusion.

What is common to all of these examples is the fact that, in each case, something--whether it was defendant's testimony,...

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