People v. Franco

• Decision Date: 14 June 1990
• Parties: The PEOPLE of the State of New York, Respondent, v. Orlando FRANCO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 7

557 N.Y.S.2d 7

158 A.D.2d 33

The PEOPLE of the State of New York, Respondent, v. Orlando FRANCO, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

June 14, 1990.

Morrie I. Kleinbart, of counsel (Alan Gadlin with him on the brief; Robert M. Morgenthau, Dist. Atty., attorney) for respondent.

Robert Koppelman, for appellant.

Before MURPHY, P.J., and CARRO, MILONAS, ASCH and KASSAL, JJ.

ASCH, Justice.

In this case involving the sale of over one kilogram of cocaine to an undercover officer, Jose Diaz, one of the three named defendants, was allowed to enter a negotiated plea of guilty. The prosecutor, however, refused to allow Fabio Franco to plead to a lesser charge unless his brother, defendant Orlando Franco, also pleaded guilty. Defendant's counsel informed him "he had a chance of walking away" and, in the small courtroom, even the judge heard counsel tell Orlando there was a possibility he would win the case. However, after it was made clear to Orlando that his brother's plea bargain was conditioned on his own guilty plea, Orlando pleaded guilty.

At the sentencing, defendant moved to withdraw his plea, asserting he had been pressured by counsel to plead guilty. While the court indicated on the record that it did not believe counsel had pressured defendant, it nevertheless exercised its discretion pursuant to CPL 220.60 and allowed defendant to withdraw his guilty plea. While the District Attorney's Office had made no objection to the court's ruling, the People thereafter moved to reinstate the vacated guilty plea claiming defendant, before another judge, had stated his first attorney had coerced him. At this hearing, Orlando protested his innocence of the charges and claimed, inter alia: "I am pressured ... My family was crying. They were pressuring me. He will get 25 years. Me my brother asked me because it was my brother, but then I thought it's unfair that I had to do that." Criminal Term reinstated the original guilty plea and sentenced defendant to the original agreed upon term of six years to life.

CPL 220.60(3) reads in pertinent part:

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 ... to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored.

In the absence of fraud, once a court accepts a guilty plea, it has no inherent power to set aside the plea without the defendant's consent (see, People v. Prato, 89 A.D.2d 860, 453 N.Y.S.2d 40; People v. Matthews, 71 A.D.2d 864, 419 N.Y.S.2d 192; People v. Ford, 65 A.D.2d 822, 410 N.Y.S.2d 343; Matter of Fernandez v. Silbowitz, 59 A.D.2d 837, 398 N.Y.S.2d 896; People v. Murphy, 53 A.D.2d 530, 384 N.Y.S.2d 180).

A court may vacate a plea on application of the prosecutor, where it was obtained by fraud or misrepresentation, provided there is no constitutional impediment (Matter of Lockett v. Juviler, 65 N.Y.2d 182, 490 N.Y.S.2d 764, 480 N.E.2d 378). However, in that case, the Court of Appeals also dealt with a special plea of "not responsible by reason of mental disease or defect", analogous to a guilty plea. The instant case, however, deals not with a vacatur of a guilty plea but with a purported vacatur of a "not guilty" plea.

The Court of Appeals has noted as to the grant of a motion to withdraw a guilty plea that: "We should say flatly and finally that a plea so allowed to be withdrawn is out of the case forever and for all purposes" (People v. Spitaleri, 9 N.Y.2d 168, 173, 212 N.Y.S.2d 53, 173 N.E.2d 35).

This court has previously reversed the order of Criminal Term which vacated a prior order of the court setting aside a judgment of conviction entered on a plea of guilty. There, Criminal Term granted the motion by the People for reargument and, after a hearing, vacated its prior order and the not guilty plea and remanded the defendant to prison to serve the sentence originally imposed. We held that "once the judgment of conviction was vacated, the guilty plea withdrawn and a not guilty plea entered, the prior plea and the judgment rendered thereon was beyond reinstatement [Cf. Matter of Lyons v. Goldstein, 290 N.Y. 19, 47 N.E.2d 425; People v. Spitaleri, 9 N.Y.2d 168, 212 N.Y.S.2d 53 173 N.E.2d 35]." (People v. Jovet, 41 A.D.2d 608, 609, 340 N.Y.S.2d 409.)

Moreover, even assuming Criminal Term had the authority to reinstate the guilty plea, under the circumstances present herein, it was an abuse of discretion to do so. The facts presented did not establish fraud or misrepresentation warranting a vacatur of the "not guilty" plea.

The People contend that defendant was granted a withdrawal of his plea when he alleged that his present attorney had coerced him into pleading guilty. Subsequently, while before another judge, he asserted it was not his present...