People v. Hollmond, 2015–02257

• Court: New York Supreme Court Appellate Division
• Writing for the Court: MILLER, J.
• Citation: 135 N.Y.S.3d 449,191 A.D.3d 120
• Parties: The PEOPLE, etc., respondent, v. Tyron HOLLMOND, appellant.
• Decision Date: 02 December 2020
• Docket Number: 2015–02257,Ind.No. 2629/13

191 A.D.3d 120
135 N.Y.S.3d 449

The PEOPLE, etc., respondent,
v.
Tyron HOLLMOND, appellant.

2015–02257
Ind.No. 2629/13

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

Argued—December 10, 2018
December 02, 2020

Paul Skip Laisure, New York, NY (Lynn W. L. Fahey of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, ANGELA G. IANNACCI, JJ.

OPINION & ORDER

MILLER, J.

A guilty plea must be knowingly and intelligently given and, if it is "to any degree induced by fear or coercion, it will not be permitted to stand" ( People v. Pearson, 55 A.D.2d 685, 686, 390 N.Y.S.2d 430 ). Under the circumstances here, and particularly in view of the defendant's substantiated and uncontradicted testimony that he was deprived of his constitutional right to consult with his attorney in advance of trial, the Supreme Court improvidently exercised its discretion in denying the defendant's application pursuant to CPL 220.60(3) to withdraw his plea of guilty. Under the circumstances and for the reasons that follow, we conclude that the interests of justice would have been better served had the defendant been permitted to withdraw his plea of guilty.

I. Factual and Procedural Background

The defendant was charged, under Indictment No. 4182/12, with attempted murder in the second degree and other related

135 N.Y.S.3d 453

offenses. The defendant was subsequently charged under Indictment No. 2629/13 with, inter alia, murder in the second degree. The crimes charged in the indictments were alleged to have occurred on multiple dates, including on April 22, 2012, and "on or about and between August 1, 2012 and October 1, 2012." The Supreme Court, Kings County (Danny K. Chun, J.), subsequently consolidated the two indictments under Indictment No. 2629/13, to proceed to a single trial.

The defendant was confined, pretrial, based on a prior felony conviction, at Coxsackie Correctional Facility, in Coxsackie, approximately 132 miles north of the Kings County Supreme Court in Brooklyn. At a calendar call on October 6, 2014, before the Supreme Court, Kings County (Betty Williams, J.), the clerk noted for the record that the defendant had "not [been] produced by the Department of Corrections." The clerk explained that the defendant was "still at the upstate correctional facility in Coxsackie." The clerk continued: "[t]he facility is claiming they didn't receive the Order to have the defendant produced."

Defense counsel asked if the court would order the defendant to be "transferred to a facility closer to this Court." Defense counsel stated that it was "very, very difficult" to communicate with the defendant when he was confined in Coxsackie. Defense counsel stated that he would "try to write the warden a letter," but that the situation had been "a continuing saga." After an off-the-record discussion, the court stated that it would "have [its] court attorney try to intercede," and later indicated it would also attempt to make "phone calls." The matter was adjourned until October 31, 2014, "for trial."

On October 31, 2014, the defendant was produced by the Department of Corrections for a calendar call before the Supreme Court, Kings County (Betty Williams, J.). The court stated that the defendant was "going ... forthwith to Part 19 for trial."

Later on that same date, the defendant appeared in the trial part of the Supreme Court, Kings County (Danny K. Chun, J.). The court stated that the matter had been sent there for trial, and that it would "likely start picking a jury on Monday." The court indicated that it first wanted to address the fact that the defendant was "brought in from Ulster County, and not from Rikers."

Defense counsel stated that the defendant was "being denied his right to consult with counsel." Defense counsel explained that the defendant had been "up in Coxsackie for quite a while" and that the facility did not permit him adequate communication with the defendant. Defense counsel had written "the warden at Coxsackie" and "indicated to him that [the defendant] was being denied his basic constitutional rights, the right to counsel." In response to his letter, defense counsel "got back this convoluted letter, which reflected basically nothing, that they are going to do what they are going to do." Defense counsel noted that the defendant was set to return to a different prison that night, but that "even when he's at the Newton prison ... it is such a distant area ... I am unable to consult with [the defendant] on a regular basis."

Defense counsel stated that if the defendant was housed at a facility in the City of New York, he would be able to consult with the defendant in person. Defense counsel emphasized that this was "a very, very serious case." The Supreme Court stated that it would "sign an order directing the Corrections Department to keep the defendant either in Rikers or Brooklyn House ... during this trial."

135 N.Y.S.3d 454

Later during the same proceeding, the Supreme Court stated that it was willing to offer the defendant a sentence of 20 years to life in prison if he agreed to plead guilty to murder in the second degree, but the court said it could not "do any better than that." Defense counsel stated that the defendant would not accept the court's offer.

The defendant next appeared before the court on November 3, 2014. The defendant was produced by the Department of Corrections from the Ulster Correctional Facility. The Ulster Correctional Facility, in Napanoch, is approximately 100 miles north of Brooklyn.

Defense counsel stated that the defendant had not been transported to a facility closer to the site of the trial, and that it was his understanding that the defendant "will continue to be housed at Ulster." Defense counsel reiterated that he could not adequately confer with the defendant under such circumstances and set forth the efforts he had made. Defense counsel noted that the response from the Department of Corrections "was very trite" and recommended that defense counsel visit with the defendant in Coxsackie, "a four or five-hour drive" from Brooklyn.

Defense counsel stated that it was also "onerous for [the defendant] to come every morning especially when he's on trial from Ulster, which he did this morning, waking up at 4, 5:00 in the morning then come to court here today without adequate preparation and consultation with his attorney." Defense counsel continued: "the Department of Corrections of the State of New York is violating [the defendant's] constitutional rights to consult with his attorney and to defend this case ... under the New York and the United States Constitution."

Defense counsel represented that the Department of Corrections had "made no effort" to respond to him or to the Supreme Court's prior directive. When the court asked the People if they had made any efforts to have the defendant transferred to a closer facility, the prosecutor responded that the People had not made any efforts to have the defendant relocated. The prosecutor stated: "I was told Ulster was going to transport him every single day." Defense counsel stated that without consultation with the defendant, he would "not proceed" unless ordered to do so by the court.

After an off-the-record discussion, the Supreme Court stated that it would issue another order, specifically addressed to the Ulster Correctional Facility, directing that the defendant be "sent down to Riker's for the duration of the trial, but before I even do that, I want to visit this possible plea offer one last time." The court then offered the defendant another plea bargain, asking if he would be willing to accept a sentence of 20 years in prison. Defense counsel conveyed that the defendant was not interested in the court's offer. The court stated that it "will not ever approve of a sentence in a case this serious anything less than 20 years." Defense counsel reiterated that the defendant had no interest in the court's offer. The court adjourned the case until November 6, 2014, "for jury selection."

Three days later, on November 6, 2014, the defendant was produced by the Department of Corrections from the Ulster Correctional Facility. Defense counsel stated that it had been "a continuing saga regarding the defendant's production" and that the defendant continued to be held in Ulster. Defense counsel stated that it had taken the defendant six hours to reach the court that day, and that after these proceedings he would be sent back to Ulster again, which would take another "four to six hours."

135 N.Y.S.3d 455

The Supreme Court acknowledged that the defendant had been produced "much later" due to "bad driving conditions." It stated that it had "been trying for the last couple of adjournments to get [the defendant] brought down to ... Riker's or anywhere else." The court stated that it had issued numerous orders, but that "they have not been adhered to." The court continued: "[p]erhaps [the orders] went to the wrong place, the wrong person, but I intend to write directly to the warden at Coxsackie." The court went on to state that, "if all those efforts fail, bottom line is...