People v. Grant

• Decision Date: 24 February 2009
• Docket Number: 2008-01623.
• Citation: 873 N.Y.S.2d 355,61 A.D.3d 177,2009 NY Slip Op 01498
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TERRY E. GRANT, Appellant.
• Court: New York Supreme Court — Appellate Division

61 A.D.3d 177

873 N.Y.S.2d 355

2009 NY Slip Op 01498

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TERRY E. GRANT, Appellant.

2008-01623.

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

Decided February 24, 2009.

Howard R. Birnbach, Great Neck, for appellant.

Kathleen M. Rice, District Attorney, Mineola (Judith R. Sternberg and Barbara Kornblau of counsel), for respondent.

OPINION OF THE COURT

FISHER, J.P.

The defendant here pleaded guilty only after the court told him that, if he did not, he would be remanded until his next scheduled court appearance. The issue presented on this appeal is whether the plea was voluntary. We hold that it was not.

In November 2005, the People filed a felony complaint charging the defendant with two counts of falsifying business records in the first degree. He was arraigned on the complaint and released on $1,000 bail. Seven months later, a grand jury returned a 40-count indictment charging the defendant with two counts of grand larceny in the third degree, scheme to defraud in the first degree, grand larceny in the fourth degree, petit larceny, attempted grand larceny in the fourth degree, attempted petit larceny, twenty-four counts of falsifying business records in the first degree, seven counts of insurance fraud in the fourth degree, and two counts of insurance fraud in the fifth degree. The charges were based on allegations that, between December 21, 1999 and October 13, 2005, the defendant, a licensed dentist with a practice in Hempstead, New York, repeatedly submitted falsified claim forms to a number of insurance carriers and attempted to alter his own business records to avoid detection.

At the defendant's arraignment on the indictment on July 6, 2006, the People asked that bail be fixed at $250,000. The court, however, continued the $1,000 bail previously set, but directed a "conditional release" which involved placing the defendant under the supervision of the Nassau County Probation Department (hereinafter the Probation Department) pursuant to a "pretrial release program." The court further directed that the defendant surrender his passport and report to the Nassau County Investigation Bureau for processing. Some five weeks later, on August 10, 2006, the People renewed their request for a higher bail, asserting that the defendant had failed to comply with conditions set by the Probation Department. The court did not change the defendant's bail status but admonished him to comply with the conditions and warned that, if he did not, it would "set high bail."

When the case was called on November 21, 2006, the court observed that it was "ripe for trial." On December 18, 2006, the court stated that the case was "getting old meaning it's going to be either disposed of soon or it's going to be tried soon." The court then told the defendant that it had reviewed the minutes of the grand jury proceedings and had concluded that, in view of the "overwhelming" proof presented, his chances of prevailing at trial were slim. The court advised the defendant that, if he were convicted after trial, he would be sentenced either "to a short period of upstate time ... or downstate time for a long period ... [such as] one year or consecutive nine-month sentences or something like that." The court stated, however, that, if the defendant were to plead guilty within the next two days, it would order a presentence report and then either sentence him to "probation coupled with restitution" or, if it "had to impose jail," it would permit him to withdraw the guilty plea. The court warned the defendant that "[t]he time has come for you to fish or cut bait." The court said it would adjourn the case for the defendant to decide whether or not to accept the plea offer, and that, if he did not, the case would be "farmed out for trial."

For reasons not clear from the record, the matter was subsequently adjourned a number of times until all parties again appeared in court on Wednesday, January 3, 2007. Plea discussions continued, and the court revealed that it had received a letter from the Probation Department complaining of the defendant's failure to comply fully with the conditions of his release. The Probation Department asked that the court "admonish the defendant and remind him that he must report as directed if he wishes to remain at liberty." After reading the letter to the parties, the court addressed the defendant as follows: "I think I'm going to take a whole lot more drastic action than that, Mr. Grant. Now, do you want the plea deal? Yes or no? Today." After counsel responded that he and the defendant thought they had until Monday to decide on the plea offer, the following exchanges occurred:

"THE COURT: That's—that is a situation that has to be addressed and I will address it right now. If he wishes the plea deal, then I will—and he takes this plea, I will continue him in the bail status that he is because if he violates the terms of his bail while he is pending sentence, I will not be bound by my commitment. If he doesn't take the plea deal today, I'm going to remand him until Monday and I can address—I can address this in open court. Now yes, you can speak to your client, Mr. Kutner [defense counsel], but you're not doing it outside. You'll do it here and under the supervision of my officers and I'll take the bench in five minutes.

"MR. KUTNER: Thank you.

[Whereupon, a brief recess was taken.]

"THE COURT: All right, Mr. Kutner, what was your client's decision?

"MR. KUTNER: I still don't know, Judge.

"THE COURT: All right. Well, if you don't know, then—.

"THE DEFENDANT: Hold up. Excuse me, your Honor. I was still trying to ration out because I thought I had until Monday, but the new information he shared with me—.

"THE COURT: You do have until Monday, but I'm going to remand you.

"THE DEFENDANT: Right. And that's new information to me so I'm trying to get that from—.

"MR. KUTNER: So, Judge, if he's remanded until Monday, he still has the possibility of pleading with a no jail commitment as of Monday?

"THE COURT: Yes.

"MR. KUTNER: All right.

[Pause.]

"MR. KUTNER: Judge, we're going to take the plea" (emphasis supplied).

The terms of the plea were then spread on the record. The defendant would plead guilty to two counts of grand larceny in the third degree, scheme to defraud in the first degree, grand larceny in the fourth degree, and falsifying business records in the first degree; he would waive his right to appeal, pay restitution in the amount of $10,102.20, and surrender his license to practice dentistry. At the time of sentence, the People would dismiss the remaining counts of the indictment, and would recommend that the defendant be fined $20,000 and sentenced to an indeterminate prison term of 1 1/3 to 4 years. The court would then sentence the defendant to probation with restitution and the suspension of his dentistry license, unless it felt, based upon the presentence report, that it could not fulfill its promise of a nonjail sentence. In that event, the defendant would be permitted to withdraw his plea of guilty.

The defendant asked some questions, particularly about the suspension of his dentistry license. The court replied that the suspension of the license was a condition of the plea, "but it's not going to be carried forth until date of sentence. If things happen between now and [the] sentence that make me change my mind, then that's a possibility. But right now it's a condition." The court then conducted an allocution which included the following exchange:

"THE COURT: Now, has anyone made any threats or forced you in any way to plead guilty here today? Now what I mean by that is exactly what I say. Is this voluntary on your part? It may be uncomfortable and it may not be easy to do, but considering the circumstances that you're in, has anyone forced you to plead guilty here today?

"THE DEFENDANT: It would be a factor that I would have to be reprimanded [sic] or—

"THE COURT: The answer is yes or no.

"THE DEFENDANT: Can you repeat the question?

"THE COURT: Has anyone forced you to plead guilty here today or are you doing it on your own decision realizing the situation you're in.

"THE DEFENDANT: No" (emphasis supplied).

The allocution concluded and the court adjourned the matter for two months for the preparation of a presentence report. The defendant's bail was continued.

Thereafter, the matter languished as the defendant twice changed attorneys and moved to withdraw his guilty plea, inter alia, on the ground that the court had coerced him to plead guilty by threatening to remand him if he did not. By order entered August 29, 2007, the court (Peck, J.) denied the motion, finding, among other things, that the defendant had not been coerced into pleading guilty. In its decision, the court wrote, in pertinent part:

"As to the issue of remanding the defendant if a plea did not take place, an examination of the historical record of the case, especially the Court dates prior to the defendant's plea date is necessary to fully understand what transpired. The defendant's custody status was that he was released to the custody of the Nassau County Probation Department. Pending the outcome of his case, he failed on eight separate occasions to comply with their mandates. The defendant had to comply with the...