People v. De Leon

• Decision Date: 08 March 1974
• Citation: 354 N.Y.S.2d 785,77 Misc.2d 969
• Parties: The PEOPLE of the State of New York v. Jose De LEON et al., Defendants.
• Court: New York City Court

Page 785

354 N.Y.S.2d 785

77 Misc.2d 969

The PEOPLE of the State of New York v. Jose De LEON et al., Defendants.

Criminal Court of the City of New York, Kings County, Part 3.

March 8, 1974.

Eugene Gold, Dist. Atty., Kings County, by Eric Bjorneby, Asst. Dist. Atty., for the People.

William Gallagher, Legal Aid Society, by Cornelia Chubb, Brooklyn (Freda S. Nisnewitz, New York City, on the brief), for defendants.

M. MARVIN BERGER, Judge:

This case presents a novel question:--Must defendants, charged with the commission of the same crime, be represented by separate attorneys before a court may accept identical guilty pleas from each defendant?

May such a plea by accepted, in the face of the possibility that if each defendant had his own lawyer, his counsel might have advised him of the possibility of inculpating his codefendants by exculpating himself? If each defendant is represented by the same counsel, is his plea of guilty an informed waiver of his constitutional rights?

The facts in the instant case required the first question to be answered in the negative, the last two in the affirmative.

Here, four defendants move to withdraw identical pleas of guilty to the charge of possessing weapons--two machetes, three knives and a bludgeon, found in an automobile driven by one of the four. When arrested, the quartet was also charged with unlawful assembly and possessing a pipe containing a small amount of marijuana.

The Legal Aid Society counsel representing all four defendants at arraignment requested that counsel be appointed for three of the defendants under the provisions of Article 18--B of the County Law. The application was denied and the matter proceeded to a hearing a week later.

At the hearing, the arresting officers testified that Torres, one of the four defendants, drove the vehicle, that the car was not stolen and that a foot long metal rod, possibly part of an exercise bar bell, lay on the front seat between the driver and another defendant. The vehicle was then searched and the machetes and knives were found under the front seat. A pipe containing a residual amount of marijuana was discovered under the back seat.

It was testified that the automobile was fourth in a line of six cars, each containing four to six male Hispanics. The defendants were held for trial, and later, another judge denied a motion to suppress the seized material.

A month after their arrest, the defendants, represented by the same attorney who appeared as their counsel at the hearing, pleaded guilty to the weapons charge (Penal Law § 265.05) to cover all three offenses. In their attorney's presence each defendant admitted that the plea was the equivalent of a conviction after trial, denied that he had been coerced or enticed by any promise into entering the plea and said that he had consulted with counsel.

Each defendant admitted that he understood that he was being charged with, and pleading guilty to, possession of the bludgeon, machetes and knives (S.M. pp. 8--10).

The month following entry of their pleas, defendants moved to withdraw their pleas and requested assignment of 18--B counsel for three of the four defendants. The basis for the request was an affirmation prepared by an attorney employed by the Legal Aid Society, other than the attorney who had theretofore represented defendants.

The affirmation stated that 'defendants did not understand that the charges against them were based on legal presumptions which could be rebutted by their testimony at trial'. Furthermore, 'because the charges were based on rebuttable presumptions, there were Potential conflicts of interest' in representation of all four defendants by a single attorney (emphasis supplied).

The defendants do not assert their innocence, but allege that the case against them rested on an inoperative presumption, which might have been challenged successfully, had each defendant been represented separately.

First, as to the flawed presumption, Sec. 265.15(2) of the Penal Law provides that when any of the weapons specified in Sec. 265.05 are found in a stolen car, all the car's occupants are presumed to possess the weapons. The presumption is narrower in the case of a car that has not been stolen and covers a smaller group of weapons--generally concealable instruments primarily intended for use as weapons--for example, switchblade knives and daggers. Bludgeons and ordinary knives are not enumerated in the limited group of forbidden weapons and, conceivably, may not support the presumption of ownership by all the occupants of the vehicle.

Counsel for the defendant argues that she was unduly hampered in her attempt to advise the defendants that some of them might testify on trial, rebut the presumption and thus cast blame on some other defendant or defendants. In her capacity as attorney for all four defendants, she could not counsel any of them to inculpate another in order to exculpate himself. Thus, defense counsel, in the words of her brief, saw herself 'caught between the conflicting interests of her clients,' unable to render effective assistance and prevented from adequately advising them of the possible options available to them. Her clients, unaware of the possible defenses, could not be said to have made an informed waiver of their rights.

Accordingly the defense asserts the guilty pleas were invalid, and defendants should now be permitted to withdraw them, especially since the People do not claim to have been prejudiced. Separate counsel should now be appointed for three of the four defendants.

Implicit in the defendant's position is the possibility that, on trial, some of the defendants might claim that they were not the owners of the weapons, thereby rebutting any presumption of ownership, even one of greater strength than the allegedly inapplicable presumption relied upon by the People.

Counsel fails to carry this argument to its logical conclusion--that all of the defendants might attempt to rebut the presumption in the same fashion as an individual defendant without necessarily inculpating a codefendant.

It is undisputed that no weapon was found on the person of any defendant. As occupants of the automobile, all of them were on the same footing. Despite the popular wisdom that the person driving the vehicle or the person in whose immediate vicinity a weapon is found is somehow more likely to be the owner, the presumption of ownership extends to every passenger, including the operator.

As stated in People v. Davis, 52 Misc.2d 181, 184, 275 N.Y.S.2d 603, 606 (Sup.Ct. Kings Co.), by Shapiro, J.:

'. . . the presumption applies not only to a situation in which the defendant is actually found in the car with the weapon but to a case where the proof establishes that the defendant and the weapon were at one time in the car together without regard to the location of either the defendant or the proscribed weapon at the time, of the defendant's apprehension. (People v. Anthony, 21 A.D.2d 666, 249 N.Y.S.2d 997; cf. People v. Spillman, 309 N.Y. 295, 130 N.E.2d 625.)'

The right to withdraw a plea rests in the sound discretion of the court (People v. Borge, 40 A.D.2d 552, 334 N.Y.S.2d 65.)

The leading case of People v. Nixon, 21 N.Y.2d 338, 287 N.Y.S.2d 659, 234 N.E.2d 687, emphasizes the need for the court's accepting a plea of guilty, to be satisfied that the defendant is aware of what he is doing--that the defendant's decision is a knowledgeable one (People v. Malinowski, 37 A.D.2d 662, 322 N.Y.S.2d 863). For as stated in Boykin v. Alabama, 395 U.S. 238, 242--244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274:

'. . . a plea of guilty is more than an admission of conduct; it is a conviction. Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality . . . What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.'

However, a plea of guilty may not be withdrawn unless there is some claim of innocence, or an assertion that the plea was induced by fraud, coercion or mistake (People v. Wright, 20 A.D.2d 857, 248 N.Y.S.2d 84).

The allocution directed to the defendants by the prosecutor, in the presence of the court, establishes that the defendants were not coerced or enticed or misled by fraud into pleading guilty and entered their plea only after consulting their counsel.

The possibility that defendants might escape conviction because the nature of the weapons might have made the operation of the presumption of ownership impossible appears to be an afterthought. Arguably, defense counsel might have driven a plea bargain on terms more advantageous to her clients. In similar situations one defendant might have volunteered to admit ownership and pleaded guilty to the charge, thus exonerating his codefendants.

On the other hand, if defendants had elected to stand trial, all might have been convicted of three charges.

Thus, the plea had advantages for the defendants--advantages which may not now be minimized by contemplating the prosecution's difficulties in obtaining convictions without the help of a leaky presumption.

There have been other cases in which a guilty plea was not permitted to be withdrawn, despite the difficulty of proving the defendant's guilt.

For example, in People v. Foster, 19 N.Y.2d 150, 278 N.Y.S.2d 603, 225 N.E.2d 200, the defendant sought to vacate a pla of guilty to attempted manslaughter in the second degree on the ground that an attempt to commit a crime required intent and that manslaughter was defined in the former Penal Law as a homicide committed without a design to effect death. Thus defendant had pleaded to a non-existent crime.

The court affirmed judgment sustaining the connection on the ground that the plea was freely taken as part of a...