People v. Hollman

• Citation: 197 A.D.3d 484,151 N.Y.S.3d 158
• Decision Date: 04 August 2021
• Docket Number: S.C.I. No. 1172/19,2020–00584
• Parties: The PEOPLE, etc., respondent, v. Donald HOLLMAN, appellant.
• Court: New York Supreme Court Appellate Division

197 A.D.3d 484
151 N.Y.S.3d 158

The PEOPLE, etc., respondent,
v.
Donald HOLLMAN, appellant.

2020–00584
S.C.I. No. 1172/19

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

Submitted—March 11, 2021
August 4, 2021

Jan Murphy, Huntington, NY, for appellant.

Joyce Smith, Acting District Attorney, Mineola, N.Y. (Jason R. Richards and Benjamin Kussman of counsel), for respondent.

LEONARD B. AUSTIN, J.P., COLLEEN D. DUFFY, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.

151 N.Y.S.3d 159

197 A.D.3d 484

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Teresa K. Corrigan, J.), rendered December 23, 2019, convicting him of unlicensed possession of explosives in violation of Labor Law § 458(1), reckless endangerment in the second degree (four counts), and attempted criminal sale of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant pleaded guilty to unlicensed possession of explosives in violation of Labor Law § 458(1), four counts of reckless endangerment in the second degree ( Penal Law § 120.20 ), and attempted criminal sale of a controlled substance in the fifth degree ( Penal Law §§ 220.31, 110.00 ). He thereafter moved, by newly appointed counsel, to withdraw the plea, which motion was denied, and sentence was imposed.

In order to be valid and enforceable, a plea of guilty must be entered knowingly, voluntarily, and intelligently (see 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 ). "When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry ‘rest[s] largely in the discretion of the Judge to whom the motion is made’ and a hearing will be granted only in rare instances" ( People v. Brown, 14 N.Y.3d at 116, 897 N.Y.S.2d 674, 924 N.E.2d 782, quoting People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ).

Here, contrary to the conclusion of our dissenting colleague, the record demonstrates that the defendant's plea of guilty was made knowingly, voluntarily, and intelligently, and this is not one of those "rare instances" in which a hearing was required ( People v. Brown, 14 N.Y.3d at 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 ; see People v. Lockwood, 178 A.D.3d 855, 856, 111 N.Y.S.3d 547 ; People v. Johnson, 170 A.D.3d 1195, 1196, 94 N.Y.S.3d 876 ; People v. Bandelt, 304 A.D.2d 835, 760 N.Y.S.2d 506 ;

197 A.D.3d 485

People v. Davis, 144 A.D.2d 576, 534 N.Y.S.2d 429 ). The plea allocution manifests the defendant's understanding of the terms of the plea agreement, including the sentencing promise, which was clearly explained to him, and the limited circumstances under which he would be permitted to withdraw the guilty plea. The defendant was told that he could ask questions of his counsel at any time, was afforded time to consult with counsel, confirmed that he had sufficient opportunity to do so, and confirmed that he was satisfied with counsel's representation. The defendant unequivocally admitted the facts of his offenses on the record, including that he possessed "explosives" without a license ( Labor Law § 458[1] ). The defendant also readily admitted that he had thrown a "lit firework" over a fence into his neighbor's yard, and that he had knowingly and unlawfully attempted to sell drugs, supplying that the drug in question was "THC."

151 N.Y.S.3d 160

The defendant made it clear at the beginning of the plea proceeding that he was unhappy that he would be remanded upon pleading guilty, as he had expected that he would be released for several weeks and then remanded at sentencing. Nevertheless, the defendant unequivocally indicated to the plea court: "I do want to take the plea." The defendant subsequently made a number of shifting complaints, such as a claim of an injured finger at the plea proceeding, which was not repeated on the motion to withdraw the plea or at sentencing, a claim on the motion and at sentencing that he had been under the influence of medical marijuana, and a claim at sentencing, not included in his motion, that his prior attorney had advised him that he could take his plea back at any time. The contentions that these alleged circumstances rendered his plea involuntary are all belied by the defendant's statements at the plea allocution (see People v. McVay, 140 A.D.3d 1090, 33 N.Y.S.3d 742 ; People v. Innocent, 132 A.D.3d 696, 697, 17 N.Y.S.3d 505 ).

The defendant also contended in his motion that he had inadequate opportunity to speak with his counsel regarding the case and any defenses. However, it is notable that when the plea court endeavored to inquire further as to an equivocal statement by the defendant that he was able to discuss "some" of the facts of the case with his counsel, the defendant terminated that inquiry, and confirmed that he had sufficient time to speak with his attorney. The defendant also does not dispute the People's assertion that, while the defendant was out on bail, he and defense counsel met with the prosecutor to view surveillance video allegedly depicting the explosives and reckless endangerment crimes. Although our dissenting colleague assumes that the defendant and defense counsel's only

197 A.D.3d 486

opportunity to talk at that time was when they were actually in the prosecutor's office, and that defense counsel neglected to otherwise confer with the defendant, the record does not so reflect. Moreover, in neither his motion nor at sentencing, or even on appeal, did the defendant specify any defenses that counsel failed to discuss with him.

The dissent's heavy reliance upon People v. Hollmond, 191 A.D.3d 120, 135 N.Y.S.3d 449 is unavailing. While in Hollmond the defendant also claimed that his guilty plea was involuntary because he did not have adequate opportunity to consult with counsel, that is where the similarity with the instant case ends. In Hollmond, the defendant "consistently and routinely" rejected plea offers and insisted on going to trial ( id. at 142, 135 N.Y.S.3d 449 ). However, unlike the defendant in the present case who was out on bail, the defendant in Hollmond was in custody, and the Department of Corrections had the defendant housed at upstate facilities 100 miles or more from New York City, the place of trial. The Department of Corrections refused, despite multiple court orders, a letter to the prison superintendent from the trial judge, and intervention by the prosecutor, to move the defendant closer both before and for the duration of the trial (see id. at 123–127, 135 N.Y.S.3d 449 ). Defense counsel repeatedly stated on the record that he had not been able to adequately consult with the defendant due to this situation and indicated that he would not go forward with a trial unless ordered to do so (see id. at 122–124, 135 N.Y.S.3d 449 ). Although the defendant was not transferred to a closer facility, the trial was scheduled and on the day of jury selection, the defendant agreed to accept a plea offer that he had previously rejected (see id. at 127, 142, 135 N.Y.S.3d 449 ). The plea court's inquiries of the defendant in Hollmond, and his responses thereto, had to be weighed against all of these circumstances (see

151 N.Y.S.3d 161

id. at 142, 135 N.Y.S.3d 449 ), including the refusal of the Department of Corrections to make the defendant accessible to defense counsel. In the instant case, the factual context of the plea court's inquiries and the defendant's responses is simply incomparable to that presented in Hollmond.

At bottom, the record here demonstrates that the defendant was feeling pressure to decide whether to plead guilty and be remanded or face greater charges if the People presented the matter to the grand jury. Indeed, the defendant's precise words were: "I am forced to plead because they don't—they will put me in the Grand Jury." However, as this Court has observed: "When offered benefits for pleading guilty and confronted with the risk of more severe punishment if a plea offer is refused, a defendant will certainly feel pressure to plead guilty. But such

197 A.D.3d 487

pressure does not render a guilty plea involuntary because ‘the imposition of these difficult choices [is] an inevitable—and permissible—attribute of any legitimate system which tolerates and encourages the negotiation of pleas’ " ( People v. Grant, 61 A.D.3d 177, 182, 873 N.Y.S.2d 355, quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 [internal quotation marks omitted]).

Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the defendant's motion to withdraw his plea without a hearing (see People v. Lockwood, 178 A.D.3d at 856, 111 N.Y.S.3d 547 ; People v. Johnson, 170 A.D.3d at 1196, ...