People v. Frederick

Citation45 N.Y.2d 520,410 N.Y.S.2d 555
Parties, 382 N.E.2d 1332 The PEOPLE of the State of New York, Respondent, v. Gary FREDERICK, Appellant.
Decision Date02 November 1978
CourtNew York Court of Appeals
David S. Zapp, New York City, for appellant

JASEN, Judge.

Framed for resolution on this appeal is the question whether the defendant was entitled to an evidentiary hearing to determine whether he was induced to plead guilty because of an off-the-record unfulfilled promise allegedly made to his attorney by the court.

Defendant, Gary Frederick, was arrested on September 29, 1972 for selling various quantities of cocaine, amphetamines and barbiturates to an undercover police officer. By an indictment filed on December 19, 1972, defendant and one Edward Montiell were charged with two counts of criminal sale of a dangerous drug in the third degree and related possessory crimes. Defendant alone was charged in two separate indictments, also filed on December 19, 1972, with the sale of amphetamines and barbiturates on August 24, 1972, and with the possession of heroin, cocaine, opium, methadone, cannabis, amphetamines, barbiturates, and a pistol, which were found in defendant's apartment at the time of his arrest.

When defendant was taken into custody, he informed the authorities that the undercover officer to whom he sold narcotics had lied about both the quantity of narcotics purchased and the amount of money involved in the transactions. Defendant consented to co-operate with the office of the Special Narcotics Prosecutor in an investigation into the conduct of this allegedly corrupt police officer.

In exchange for defendant's co-operation, the parties negotiated a plea whereby defendant was to plead guilty to criminal possession of a dangerous drug in the third degree. The prosecutor also agreed to recommend a sentence of probation if defendant's assistance in the investigation proved satisfactory.

On May 30, 1973, the defendant tendered his guilty plea. The following colloquy occurred between the defendant and the court:

"THE COURT: Having had that discussion (with your attorney) do you understand that you are pleading guilty to a 'C' felony today?


"THE COURT: Do you understand under a 'C' felony you can receive a sentence of up to fifteen years, as a matter of fact, there could be a minimum sentence of five years and a maximum sentence up to fifteen years; do you understand?

"DEFENDANT: Yes, I do.

"THE COURT: Now as far as I am concerned, and as far as the District Attorney is concerned, well, I will first ask you this: Has the District Attorney or your attorney indicated to you anything other than that I have the scope and I could sentence you up to fifteen years? Have any promises been made to you beyond what I have just said?


"THE COURT: In other words, what I am saying is I have made no promises except to get a probation report, listen to Mr. Zapp (defendant's attorney) or whoever will be representing you, I assume Mr. Zapp, on the day of sentence, listen to you if you want to, and listen to the District Attorney if he wants to make any recommendation; but that if I sentence you to anywheres up to fifteen years, or a minimum of five years, up to five years, or a maximum up to fifteen, you have received all promises and recommendations that are here made today; do you understand?


"THE COURT: I notice you turned to Mr. Zapp. I notice he said something to you. I don't want to mislead you. I assume he didn't say anything contrary to what I am saying. You understood what I said? I said that you can receive and I make no promises as far as what I will do on the day of sentence. I don't say I will, I won't say I won't, but I say I have that scope, and I can sentence you, and if you do receive a sentence up to a minimum of five years and a maximum of fifteen, you have no cause for complaint and say that you want to withdraw your plea because I will not allow it; do we understand each other?


Defendant's sentencing was repeatedly adjourned for several months while the investigation of the undercover officer continued. However, on November 25, 1974, when the parties again appeared before the court to defer sentencing, Mr. Zapp alleged that prior to the entering of defendant's guilty plea, he requested that the court put on the record its assurance that the defendant would be permitted to withdraw his plea if the court could not, at sentencing follow the prosecution's recommendation. Mr. Zapp further contended that the Judge responded, in substance, that such formalities were not necessary since the prosecution's sentence request was always adopted. The court denied making such a statement, or ever implying that defendant could withdraw his plea if he was not satisfied with the sentence. This discussion culminated in defendant's motion to withdraw his guilty plea in December of 1974.

Defendant's motion was denied and he appeared for sentencing on June 27, 1975. Although the prosecutor recommended that defendant be placed on probation, the court, after reviewing the probation reports, stated that it was unable to follow this recommendation and imposed an indeterminate four-year prison sentence. The Appellate Division unanimously affirmed.

In this court, defendant claims that he was entitled to an evidentiary hearing on his motion to withdraw his guilty plea. In support of his motion, defendant alleged that he was induced to plead guilty by his attorney's representation that the court promised to sentence him in accordance with the prosecutor's recommendation. If this allegation were indeed true, defendant should have been allowed to withdraw his plea, for it is well settled that "a guilty plea induced by an unfulfilled promise either must be vacated or the promise honored". (People v. Selikoff, 35 N.Y.2d 227, 241, 360 N.Y.S.2d 623, 636, 318 N.E.2d 784, 793, cert. den. 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822, citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427.)

There exists no hard-and-fast rule which prescribes the nature and extent of the fact-finding procedures prerequisite to the disposition of motions to withdraw a plea of guilty previously entered. (People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 162, 324 N.E.2d 544-545.) Rather, the Judge hearing the motion must exercise his discretion in affording defendant a reasonable opportunity to advance his claims from which an informed and prudent determination can be rendered. As we stated in People v. Tinsley, 35 N.Y.2d, at p. 927, 365 N.Y.S.2d, at p. 162, 324 N.E.2d, at p. 544, Supra ), "(o)nly in the rare instance will a defendant be entitled to an evidentiary hearing; often a limited interrogation by the court will suffice." (See, also, People v. Friedman, 39 N.Y.2d 463, 467, 384 N.Y.S.2d 408, 410, 348 N.E.2d 883, 886; People v. Nixon, 21 N.Y.2d 338, 287 N.Y.S.2d 659, 234 N.E.2d 687.)

There is no suggestion that defendant was not given an adequate opportunity to present his contentions. On November 25, 1974, the misunderstanding between the court and defendant's counsel crystallized. An extensive dialogue ensued at that time, and defendant submitted detailed affirmations in support of his motion. Nor does the record intimate that defendant's guilty plea was improvident or baseless. (See, e. g., People v. Beasley, 25 N.Y.2d 483, 307 N.Y.S.2d 39, 255 N.E.2d 239; People v. Nixon, 21 N.Y.2d 338, 287 N.Y.S.2d 659, 234 N.E.2d 687, Supra.) Defendant was not a novice in criminal affairs and was, therefore, schooled in the nature of criminal proceedings. Only after consultation with his attorney and detailed explanations by the court did defendant tender his guilty plea. There is, therefore, no basis for assuming that defendant was not cognizant of the legal implications and personal repercussions of his action.

Absent a showing that defendant's plea was baseless, the Judge to whom the motion is addressed must be entitled to rely on the record to ascertain whether any promises, representations, implications and the like were made to the defendant. (See People v. Selikoff, 35 N.Y.2d 227, 241-244, 360 N.Y.S.2d 623, 635-639, 318 N.E.2d 784, 793-795, Supra; People v. Lazore, 59 A.D.2d 635, 398 N.Y.S.2d 189.)

Judicial recognition of the laudable purposes served by plea negotiations is legion, and further documentation would be mere surplusage. (See, e. g., Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 52 L.Ed.2d 736; Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427, Supra; Brady v. United States, 397 U.S. 742, 752, 90 S.Ct. 1463, 25 L.Ed.2d 747; People v. Selikoff, 35 N.Y.2d 227, 232-235, 360 N.Y.S.2d 623, 628-631, 318 N.E.2d 784, 788-790, Supra.) The dispositive factor in this case is the need for finality which must be accorded dispositions by guilty plea in order to secure these acknowledged benefits. Only rigorous adherence by the courts to a policy of affording guilty pleas a great measure of finality will immunize plea negotiations from indiscriminate potshots.

As previously noted, the court took painstaking measures to insure that the defendant fully understood the consequences of his guilty plea. Further, the court informed defendant, in emphatic terms, that no promises were being made concerning the sentence defendant could receive. If the court had indeed assured defendant's counsel that it would follow the...

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