People v. Gerald

• Decision Date: 29 September 2021
• Docket Number: 2019–01157,S.C.I. No. 45/18
• Citation: 153 N.Y.S.3d 588,197 A.D.3d 1324
• Parties: The PEOPLE, etc., respondent, v. Thomas R. GERALD, appellant.
• Court: New York Supreme Court — Appellate Division

197 A.D.3d 1324

153 N.Y.S.3d 588

The PEOPLE, etc., respondent,

v.Thomas R. GERALD, appellant.

2019–01157

S.C.I. No. 45/18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—March 24, 2021

September 29, 2021

Matthew Muraskin, Port Jefferson, NY, for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Nicole L. Gallo of counsel), for respondent.

HECTOR D. LASALLE, P.J., CHERYL E. CHAMBERS, ROBERT J. MILLER, COLLEEN D. DUFFY, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Stephen L. Braslow, J.), rendered November 8, 2018, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is reversed, on the law, on the facts, and as a matter of discretion in the interest of justice, the defendant's application to withdraw his plea of guilty is granted, the plea is vacated, and the matter is remitted to the County Court, Suffolk County, for further proceedings on the superior court information.

The defendant was charged with various crimes, including, as relevant here, criminal possession of a weapon in the second degree. The defendant entered into a plea agreement pursuant to which he agreed to plead guilty to attempted criminal possession of a weapon in the second degree ( Penal Law §§ 110.00, 265.03[3] ), in exchange for a promised sentence of 3½ years of imprisonment to be followed by a period of 5 years of postrelease supervision.

Prior to his sentencing date, the defendant made a written motion to withdraw his plea of guilty pursuant to CPL 220.60(3). The defendant argued, in essence, that he pleaded guilty due to a misunderstanding of the legal definition of constructive possession, and due to a further misunderstanding of the People's evidence of his guilt. The defendant asserted that these misunderstandings were due to the ineffective assistance of his prior attorney. The People opposed the defendant's motion. In an order dated September 25, 2018, the County Court denied the defendant's motion, without holding a hearing.

After the defendant's written motion was denied, he sent the County Court a letter in which he again asserted his innocence and provided additional facts relevant to that claim. At his sentencing proceeding, the defendant orally alleged that he was innocent, and that he had only pleaded guilty due to the ineffective assistance of his attorneys. The People made no response to the defendant's application to withdraw his plea at the sentencing proceeding. The court declined to address the defendant's arguments or inquire further into his allegations, in effect, denying his application. The court sentenced the defendant, in accordance with the plea agreement, to a term of imprisonment of 3½ years to be followed by a period of postrelease supervision of 5 years.

On appeal, the defendant contends that the County Court should have granted his application to withdraw his plea of guilty at the sentencing proceeding. We agree.

As an initial matter, the People contend that the defendant validly waived his right to appeal and they seek to enforce that purported waiver on this appeal. However, since the only substantive arguments raised on the defendant's appeal concern the validity of his plea, this Court "need not reach the People's contention regarding the validity of the defendant's appeal waiver" ( People v. Adames, 173 A.D.3d 1058, 1058, 100 N.Y.S.3d 567 ; see People v. Henriquez, 168 A.D.3d 876, 876, 89 N.Y.S.3d 912 ; People v. Bernard, 155 A.D.3d 1059, 1059, 65 N.Y.S.3d 457 ; see also People v. Fontanet, 126 A.D.3d 723, 723, 2 N.Y.S.3d 371 ).

"[I]n order to be valid and enforceable, a guilty plea must be entered voluntarily, knowingly and intelligently" ( People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 ). "A guilty plea is voluntary only if it represents an informed choice freely made by defendant among other valid alternatives" ( id. at 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 ; see North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 ; People v. Grant, 61 A.D.3d 177, 182, 873 N.Y.S.2d 355 ).

"The trial court determines that [a plea] meets those requirements by considering all the relevant facts and circumstances surrounding the waiver, including the nature and terms of the agreement and the age, experience and background of the accused" ( People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; see People v. Selikoff, 35 N.Y.2d 227, 235, 360 N.Y.S.2d 623, 318 N.E.2d 784 ). "Manifestly, an unfair bargain or one coerced to conceal error or misconduct does not meet these standards and is subject to vacatur on direct appeal or by appropriate posttrial proceedings" ( People v. Seaberg, 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ).

Even after a defendant pleads guilty, the Criminal Procedure Law provides that "[a]t any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty ... to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored" ( CPL 220.60[3] ; see People v. Hollmond, 191 A.D.3d 120, 136, 135 N.Y.S.3d 449 ).

"The decision as to whether to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of discretion" ( People v. Jacob, 94 A.D.3d 1142, 1143, 942 N.Y.S.2d 627 ; see People v. Alexander, 97 N.Y.2d 482, 485, 743 N.Y.S.2d 45, 769 N.E.2d 802 ). In general, "such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea" ( People v. De Jesus, 199 A.D.2d 529, 530, 606 N.Y.S.2d 255 ; see People v. Nettles, 30 N.Y.2d 841, 841–842, 335 N.Y.S.2d 83, 286 N.E.2d 467 ; People v. Englese, 7 N.Y.2d 83, 87, 195 N.Y.S.2d 641, 163 N.E.2d 869 ; People v. Swain, 192 A.D.3d 827, 143 N.Y.S.3d 104 ; People v. Haffiz, 77 A.D.3d 767, 768, 909 N.Y.S.2d 490, affd 19 N.Y.3d 883, 951 N.Y.S.2d 690, 976 N.E.2d 216 ; People v. Smith, 54 A.D.3d 879, 880, 863 N.Y.S.2d 818 ).

"In deciding whether to grant a defendant's motion to withdraw a guilty plea, additional factors may be relevant" ( People v. Hollmond, 191 A.D.3d at 137, 135 N.Y.S.3d 449 ). "For instance, the time that has elapsed between the guilty plea and the motion to vacate it has been described as a ‘significant’ factor" ( id. , quoting People v. Nixon, 21 N.Y.2d 338, 355, 287 N.Y.S.2d 659, 234 N.E.2d 687 ). In addition, a court should consider the prejudice, if any, that would result to the People if the motion to withdraw the plea is granted (see People v. Leslie, 98 A.D.2d 977, 470 N.Y.S.2d 259 ; People v. Griffin, 77 A.D.2d 666, ––– N.Y.S.2d –––– ; People v. Arcuri, 64 A.D.2d 1028, 1028–1029, 409 N.Y.S.2d 319 ; People v. McIntyre, 40 A.D.2d 1038, 338 N.Y.S.2d 1011, 1012; People v. East, 39 A.D.2d 606, 332 N.Y.S.2d 396 ).

Here, the defendant secured new counsel and made a written motion to withdraw his plea a little more than four months after he pleaded guilty. The County Court denied the defendant's motion, without a hearing or any further inquiry into the defendant's claims. At the subsequent sentencing proceeding, the defendant again asserted his innocence and again asked the court to permit him to withdraw his plea based on his attorneys’ failure to provide meaningful representation. The defendant's application to withdraw his plea at the sentencing proceeding was based on his statements to the court and his prior evidentiary submissions, which tended to substantiate his contention that he had not understood the concept of constructive possession or the nature of the People's evidence at the time that he pleaded guilty. These submissions were sufficient to cast doubt on his guilt and the validity of his plea (cf. People v. Davis, 187 A.D.3d 1291, 1292, 131 N.Y.S.3d 447 ). The People did not allege any prejudice that would have resulted had the court permitted the defendant to withdraw his plea of guilty at that time (see People v. Hollmond, 191 A.D.3d at 143, 135 N.Y.S.3d 449 ).

Nor do the People allege any prejudice on this appeal. Rather, the People contend that the defendant's application to withdraw his plea was properly denied without a hearing because it constituted an impermissible attempt at hybrid representation, and because the defendant failed to comply with CPLR 2221. These arguments are improperly raised by the People for the first time on appeal, and we decline to consider them (see generally CPL 470.05[2] ; People v. Maher, 89 N.Y.2d 456, 460 n. 1, 654 N.Y.S.2d 1004, 677 N.E.2d 728 ). Contrary to the People's further contention, the arguments raised by the defendant at the sentencing proceeding were adequately preserved for appellate review (see People v. Blanford, 179 A.D.3d 1388, 1391, 118 N.Y.S.3d 294 ; see also People v. Davis, 187 A.D.3d at 1292, 131 N.Y.S.3d 447 ).

The Court of Appeals has stated that "[w]here, after a plea of guilty has been entered, and before sentence, defendant states to the court he is not guilty, or that he believes he is not guilty, the rule has developed that the court should not, except in extraordinary circumstances, then impose sentence, but either grant an application to allow the plea to be withdrawn; or conduct a hearing to determine whether the application has merit" ( People v. McKennion, 27 N.Y.2d 671, 672–673, 313 N.Y.S.2d 876, 261 N.E.2d 910 ; see People v. McClain, 32 N.Y.2d 697, 697–698, 343 N.Y.S.2d 601, 296 N.E.2d 454 ; People v. Nixon, 21 N.Y.2d at 355, 287 N.Y.S.2d 659, 234 N.E.2d 687 ). The County Court's failure to follow this rule at the sentencing proceeding in this case constituted error as matter of law (see People v. Nixon, 21 N.Y.2d at 355, 287 N.Y.S.2d 659, 234 N.E.2d 687 ).

Given the record before the County Co...