People v. Gonzalez

• Decision Date: 21 July 2005
• Docket Number: 01234/05
• Citation: 9 Misc.3d 344,2005 NY Slip Op 25300,801 N.Y.S.2d 505
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. ROBERTO GONZALEZ, Defendant.
• Court: New York Supreme Court

9 Misc.3d 344

801 N.Y.S.2d 505

2005 NY Slip Op 25300

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. ROBERTO GONZALEZ, Defendant.

01234/05

Supreme Court, New York County.

July 21, 2005.

Legal Aid Society (Deborah Dearth of counsel), for defendant.

Robert M. Morgenthau, District Attorney (Olivia Sohmer of counsel), for plaintiff.

OPINION OF THE COURT

MICHAEL R. AMBRECHT, J.

Following his arrest on February 25, 2005 defendant Roberto Gonzalez was charged by superior court information with two counts of course of sexual conduct against a child (Penal Law § 130.80 [1] [a], [b]) and one count of endangering the welfare of a child (Penal Law § 260.10 [1]). The charges stemmed from allegations that defendant had repeatedly engaged in sexual contact with his infant stepdaughter.¹ On April 29, 2005, defendant entered a plea of guilty to all charges in exchange for a negotiated sentence of 90 days' incarceration, the balance of 10 years on probation, and participation in a sex offender's treatment program. A full final order of protection prohibiting defendant from residing in the victim's home was issued.

At the time of the plea defendant was placed under oath and questioned by the court. During the allocution defendant admitted to engaging in sexual contact with his stepdaughter during various periods in 1999-2002 when she was between 10 and 13 years old.² Defendant specifically admitted to touching his stepdaughter's breasts, genitals and buttocks and to having had her touch his genitals. Defendant was also allocuted concerning the waiver of his right to appeal the conviction which he had executed as a condition of the plea.

Following entry of the pleas and the allocution, defendant was unambiguously directed by this court to cooperate fully with the Department of Probation in its preparation of the presentence investigation report. To impress upon the defendant the importance of his full cooperation, this court stated on the record that:

"I want to impress upon you that a requirement of my accepting this plea and agreeing to this disposition and sentence is that you cooperate with that probation officer and are truthful. I am telling you now, if, as a result of that interview, the probation officer reports that you in any way disclaim the facts that you just allocuted to, I will not be bound by this promise and I will not let you withdraw your plea as allocuted to me today. Do you understand that?"

In reply defendant stated that he understood. His attorney asked for, and was granted, time to explain the significance of the interview to the defendant which she did. She then informed the court that the condition was understood and acceptable. The case was then adjourned to March 13, 2005 for sentencing.

On March 13, 2005 defendant was not sentenced because the court noted that the presentencing report was inconsistent with the defendant's plea allocution and appeared to be in violation of the court's warnings to the defendant at the time of the plea with respect to cooperating with the Department of Probation. Specifically, on page four of the report under the heading "Summary of Offender's Statement" the probation officer interviewing the defendant indicated that "defendant refused to make a statement regarding the instant offense." The court later learned that in completing this portion of the report the officer relied upon a case write-up from the District Attorney's office rather than defendant's own contemporaneous statement. The write-up paraphrased an earlier videotaped statement given by defendant in which he admitted the conduct allocuted to. Accordingly, a hearing pursuant to People v Hicks (98 NY2d 185 [2002]) was ordered to determine whether and to what extent defendant had in fact violated the court's admonitions to cooperate fully with the Probation Department.

Findings of Fact

The Hicks hearing was conducted on June 7, 2005. The People introduced, inter alia, the stenographic plea minutes of the defendant's plea, the presentence report and the worksheet notes of Probation Officer Shelly Smith who prepared defendant's presentencing report. Officer Smith was the only witness called. The defendant did not testify or otherwise present a case. Applying the standard of proof beyond a reasonable doubt the court makes the following findings of fact and conclusions of law.

Officer Smith has been an investigative probation officer for eight years. In the course of her duties she prepares approximately 30 to 40 presentencing reports per month. She holds a Master's degree in public administration and was previously employed as a caseworker for a foster care agency. Her testimony was forthright and unevasive and the court finds her testimony to be credible in all respects.

On May 3, 2005 Officer Smith was assigned the routine task of preparing defendant's presentencing report. On that date she met with defendant and interviewed him, while taking notes on a worksheet, for approximately 25 minutes. Officer Smith asked defendant a host of standard background questions which defendant answered. Officer Smith characterized defendant's general demeanor throughout the interview as cooperative. The interview took place in English which defendant appeared to fully understand. Defendant never requested the aid of an interpreter.

At the point in the interview where Officer Smith asked defendant about the facts of the crimes to which he had pleaded guilty, defendant stated that he did not wish to talk about the case. Officer Smith informed defendant that she would need a statement about the facts of the case from him and then moved on to other topics. Later in the interview Officer Smith again asked him to make a statement about the instant offense to which defendant again replied that he did not wish to talk...