People v. Jones
| Decision Date | 29 September 1976 |
| Citation | 87 Misc.2d 931,387 N.Y.S.2d 779 |
| Parties | The PEOPLE of the State of New York v. Sylvester JONES et al., Defendants. |
| Court | New York Supreme Court |
Mario Merola, Dist. Atty., Bronx County by Barry Weinstein, New York City, for the People.
William J. Gallagher, Legal Aid Society, by James Constantinople, New York City, for Sylvester Jones.
Robert Florsheim, New York City, for Rose Marie Hawkins.
The application by defendants, Sylvester Jones and Rose Marie Hawkins to withdraw their guilty pleas heretofore entered raises novel issues of first impression.
The defendants were indicted on February 11, 1975, and charged with committing the crime of Robbery in the first degree, a Class B felony, and other related crimes, (while acting in concert). The complainant was one Juan Rodriguez.
Prior to April 26, 1976, the case had been on the calendar on 23 different dates and before me, in the trial part, on eight different times. The case had been marked 'ready' for trial or hearing for April 26, 1976. Plea negotiations had been had previously, but had not been conclusive because while all defendants were eager to plead, the defendant, Sylvester Jones (a predicate felon) would not accept a sentence greater than two to four years, and the District Attorney would not agree to less than four to eight years.
The defendant, Frank Hawkins had made a full confession to the police, implicating all three defendants and had led the police to where the complainant's car was after the robbery; he had also offered, through his attorney, to testify against the other defendants.
The minutes of April 26th show that defendants Sylvester Jones and Rose Marie Hawkins were not present when the case was first called and it was marked 'second call.' Defendant, Frank Hawkins was present as were the attorneys for all three defendants. The court was advised that Assistant District Attorney Barry Weinstein, who was to try the case, was engaged in trial in another part and one of the assistants in this part answered the calendar. The defendants are represented by individual, active practitioners and it had been almost impossible to get all three of them and Mr. Weinstein ready previously. The court therefore initially directed that the case be sent to the part where Mr. Weinstein was on trial, at which time the following took place 'MR. FLORSCHEIM (attorney for Rose Marie Hawkins): Judge, we have discussed it and there are further discussions indicated, I think we might be able to resolve it.
The court thereupon sent for Mr. Weinstein.
The court recalls that informal discussions were had before the bench while awaiting Mr. Weinstein's arrival, during which the court was informed that the offer to defendant Jones was 3--6 years and that Jones still wanted 2--4 years; at that point the court suggested 2 1/2--5 years. When Mr. Weinstein appeared he was informed of the discussions before the bench. The record indicates that the following then took place:
Whereupon the defendants' attorneys and Mr. Weinstein finalized the terms of the pleas and the attorneys went back to the defendants and conferred with them and the plea proceedings were had.
The three defendants thereupon pleaded guilty, as agreed, to reduced charges. Jones pled guilty to Robbery in the third degree with the agreed upon sentence, as aforesaid, and Frank Hawkins and Rose Marie Hawkins pled to Attempted Robbery in the third degree (Class E felony) with no agreement or promise as to sentence; the said pleas were in full satisfaction to all the counts of the indictment.
At the time the pleas were taken, each defendant was questioned extensively by the court and each defendant set forth on the record his participation in the crime and, in his own words, exactly what he or she had done; each defendant also stated in his own words, that the other co-defendants had participated in the crime.
Following the respective pleas, the defendants were ordered to appear for sentence on June 7, 1976. At that time, a full probation report on each defendant was received by the court; all defendants admitted to the Probation Officer their respective participation in the robbery.
Defendant, Frank Hawkins appeared for sentence on June 7. Based upon his probation report, the sentence was adjourned six months to December 6, 1976, and he was placed on interim supervision.
Defendants, Sylvester Jones and Rose Marie Hawkins failed to appear for sentence when the calendar was called on June 6, but they did appear with their attorneys on June 8, at which time each attorney was given his respective defendant's probation report. All three reports state that the department's letter to the complainant was returned by the Post Office with the notation 'deceased'. The attorneys for defendants, Sylvester Jones and Rose Marie Hawkins confronted the assistant district attorney with this information and learned from him that he had received a telephone call on Thursday, April 22, 1976, from one Angel Vega, who told him that the complainant witness had died. The defendants, Sylvester Jones and Rose Marie Hawkins, (hereinafter referred to as the defendants), thereupon made oral application to the court to withdraw their respective guilty pleas claiming, solely, that the same had been obtained 'via egregious, prosecutorial misconduct in violation of their right to due process under the Fourteenth Amendment,' as a result of the prosecutor's failure to disclose to the defendants and the court, prior to the guilty pleas, that the complaining witness had died. Defendant, Frank Hawkins does not join in this application. The District Attorney denied any fraud and urges that he had no obligation to reveal to the defendants and to the court that he had been told that the complainant, Rodriguez, was dead.
In People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 162, 324 N.E.2d 544 it was held that the nature and extent of the fact-finding procedures prerequisite to the disposition of an application to withdraw a plea of guilty previously entered rest largely in the discretion of the judge to whom the application is made.
A hearing was thereafter held before me on June 17, 1976, at which time the defendants, through their attorneys, set forth on the record the facts and their arguments to withdraw their previously entered guilty pleas. Briefs, and reply briefs have also been filed by these defendants and by the District Attorney.
The facts, as found by the court are not in dispute and have previously been recited, and will be further set forth hereinafter to the extent necessary to dispose of this application.
The defendants do not assert their innocence and no claim is made of any deficiency in the inquiries by the court at the time their respective pleas were entered nor that the agreed upon sentences will not be imposed. Both sides agree as to what happened and both sides quote from the same basic decisions which require that a guilty plea must be voluntarily and knowingly made (McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418); and that there must be an 'effective waiver' by a defendant of his rights (Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.)
It is clear that fraud on the part of the prosecutor mandates the withdrawal of the guilty plea (Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009); as does 'duress' practiced on the defendant (People v. Flowers, 30 N.Y.2d 315, 33 N.Y.S.2d 393, 284 N.E.2d 557); failure of the prosecutor to abide by the terms of the negotiated plea bargain (Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427); or where, at the time the plea was entered, no one involved was aware that the defendant would be subject to mandatory life sentence as a fourth felony offender (People v. Nettles, 30 N.Y.2d 841, 335 N.Y.S.2d 83, 286 N.E.2d 467).
(Kercheval v. United States, supra, 274 U.S. at page 223, 47 S.Ct. at page 583).
See also, American Bar Association Minimum Standards for Criminal Justice, Standards Relating to Withdrawal of the Plea, Section 2.1.
The defendants contend that the prosecutor's silence at the time the pleas were entered, to wit, his failure to disclose that the complainant was dead, was deliberate and knowing and for the sole purpose of obtaining a conviction through the deception of the court and their counsel and that he was under an affirmative duty to disclose this information, which they term 'material evidence', citing CPL 240.40 'Discovery: Continuing Duty to Disclose'; Code of Professional Responsibility, Canon 7; Disciplinary Rule 7--103; and Brady v. Maryland, 373 U.S. 83, 83...
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Hatfield, In Interest of
...file which might not aid the defendant in some remote or fanciful way in the preparation of his case. (See People v. Jones (1976), 87 Misc.2d 931, 387 N.Y.S.2d 779, aff'd 44 N.Y.2d 76, 404 N.Y.S.2d 85, 375 N.E.2d 41 (1978).) However, the purpose of Brady is not to provide the defendant with......
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Benjamin S., Matter of
...a state attorney may elect to remain silent or take no position on matters which he feels are immaterial to the proceedings (cf. People v. Jones, 87 Misc.2d 931 However, once the prosecutor does enter into matters raised in plea negotiations and becomes aware that a defendant considers his ......
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Wayne M., Matter of
...This ethical injunction includes a situation such as the one at bar in which a complainant is unavailable (cf. Peo. v. Jones, 87 Misc.2d 931, 387 N.Y.S.2d 779). The notion that a defendant or respondent will plead guilty when a complainant is permanently unavailable to testify can only be f......
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People v. Jones
...application on June 17, 1976, at the conclusion of which, following submissions of counsel, the application was denied (87 Misc.2d 931, 387 N.Y.S.2d 779). The Appellate Division affirmed defendant's judgment of conviction on the plea, and we now affirm the dispositions of both courts below.......