People v. Mills

• Decision Date: 24 September 1984
• Citation: 480 N.Y.S.2d 493,103 A.D.2d 379
• Parties: The PEOPLE etc., Respondent, v. Chester MILLS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 493

480 N.Y.S.2d 493

103 A.D.2d 379

The PEOPLE etc., Respondent, v. Chester MILLS, Appellant.

Supreme Court, Appellate Division,

Second Department.

Sept. 24, 1984.

Warren H. Richmond, III, Northport, for appellant.

Patrick Henry, Dist. Atty., Riverhead (Frances A. Sclafani, West Islip, of counsel), for respondent.

Before GIBBONS, J.P., and THOMPSON, WEINSTEIN and BROWN, JJ.

WEINSTEIN, Justice.

The instant appeal poses the question of whether Criminal Term erred in conducting a nonjury trial on a stipulated set of incriminating facts without having first inquired of defendant whether he had knowingly and intelligently agreed to the stipulation which, defendant alleges, was tantamount to a guilty plea with respect to the charges of which he was ultimately convicted. Assuming, without actually concluding that the underlying stipulation was indeed the functional equivalent of a guilty plea, we are of the view that the judgment of conviction should nevertheless be affirmed.

Defendant was indicted by a Suffolk County Grand Jury and charged in Indictment Number 11 48/82 with the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts). The charges resulted from defendant's participation in a sale of cocaine to an undercover Suffolk County Narcotics Squad officer on December 10, 1981. A nonjury trial on a stipulated set of facts was held before Justice JOSEPH JASPAN on June 10, 1982.

At the outset of the proceedings, defendant signed a waiver of jury trial in the presence of both the court and defense counsel. Both sides thereafter waived opening statements and the following stipulation was made on the record.

"MR. PERINI Your Honor, I believe we can agree on a stipulation that I would call one--if I were to call one Raymond Kelly, a police officer in the Suffolk County Narcotics squad, he would testify as follows:

"On December 10, 1981, Officer Kelly, with one Detective Manthe and a confidential informant, went to Gloria's Bar in Islip, on Islip Avenue in Central Islip. At that time, in the bar--the confidential informant entered the bar and returned a short time later, advising the undercover police officer that a subject known as Chet would take the undercover police officers to a house in Brentwood to purchase cocaine. The confidential informant reentered the bar, that being Gloria's, and came back outside with a black male by the name of Chester Mills.

"I think we can stipulate that, in fact, is the defendant, also known as Chet.

"MR. SILVERMAN So stipulated.

"MR. PERINI: Chet and the confidential informant entered the vehicle of the undercover officer, that being Officer Kelly. There were--Everyone said hello, and Detective Manthe and Officer Kelly then drove Chet, the defendant, to a house in Brentwood. Chet told Detective Manthe to drive to Marshal Lane and Laurie Lane in Brentwood, New York, and park the vehicle.

"At that time, Chet asked the undersigned--that being Officer Kelly--for $100 for the gram of cocaine. The undercover officer refused to give $100 to Chet and told Chet to go in and get the gram of cocaine and come back.

"The defendant, Chet left the undercover vehicle, went to the end of the street and left the view of the officers. At approximately 3:55 p.m., Chet returned and entered the undercover car and said he could not get a gram fronted, meaning that his--

"THE COURT: No, what your--

"MR. PERINI: His person would not give him the cocaine. The undersigned, Detective Manthe--that being Officer Kelly--and Detective Manthe and the confidential informant and Chet then drove away from the area.

"At 4:05 p.m., Chet agreed to return to the area to go to get a quarter bag of the same as a sample for the undercover police officers. That would be a quarter of a gram of cocaine. At that time, Chet stated that he wanted a couple of lines from the package for doing the deal. Officer Kelly and Detective Manthe agreed to give Chet, the defendant, a couple of lines for doing the deal.

"Chet then exited the undercover vehicle, left the sight of the undercover officers and returned five minutes later. When Chet entered the undercover car, he handed the undersigned--that being Officer Kelly--a folded packet of--a folded paper packet marked, 'One-quarter'.

"Officer Kelly opened the paper packet and Detective Manthe and Officer Kelly examined the white powder. It appeared to be cocaine. At--The time of the pass was 4:15. At 4:18 p.m., Chet exited the undercover car and left--again left the view of the police officers, returning at 4:28.

"When he entered the car, he handed the undercover officers two folded packets, each marked 'A half.' Chet advised the undersigned and Detective Manthe that one of the half-gram packets only had a quarter of a gram. The undersigned, Officer Kelly, and Detective Manthe checked out the packet. It appeared to be cocaine. Officer Kelly then handed Chet $75, the defendant, Chet, left the view of the officers and returned a short time later, paying his--the person who he had obtained the cocaine from. Chet was, in fact, given a line of cocaine from the package for doing the deal for the officers. And they parted their ways.

"The drugs were taken to the--I think we can stipulate to the chain of custody of the drugs. Officer Kelly kept them on his person until he caused them to go to the Police Lab.

"And if Mark Farley, a chemist with the Police Lab, was called as a witness, he would testify that he analyzed the drugs that were purchased from the defendant and there was the presence of cocaine. It was approximately a quarter of a gram.

"THE COURT: Cocaine in each one?

"MR. PERINI: Yes

"THE COURT: So stipulated?

"MR. SILVERMAN: So stipulated, your Honor."

After so stipulating, the People rested their case and the defense indicated that it had no case to offer. Defense counsel conceded two separate acts of possession which had occurred some moments apart. It was contended that the stipulated facts made out a classic case of agency with the result that defendant could not be found guilty of either of the class B felonies charged, to wit, criminal sale of a controlled substance in the third degree or criminal possession of a controlled substance in the third degree (with intent to sell) (Penal Law, §§ 220.39, 220.16), inasmuch as the defense of agency negated the requisite element of intent. The court indicated that it would consider the lesser included offense of criminal possession of a controlled substance in the seventh degree, a class A misdemeanor (Penal Law, § 220.03).

At the conclusion of the trial, defendant was found not guilty of the crimes charged in the indictment but guilty of two counts of the lesser included offense. In view of defendant's extensive criminal record and unfavorable probation report, he was sentenced to concurrent terms of incarceration of one year.

Defendant's argument on appeal is that the trial court erred in permitting him to be tried on a stipulated set of facts without first inquiring whether he had knowingly and intelligently waived his right to confront and cross-examine the witnesses against him and his right to present evidence in his own behalf. As per defendant's analysis, there is no meaningful distinction between the instant situation and situations requiring such inquiries prior to the acceptance of a guilty plea.

The contention that defendant, by way of a stipulation of uncontroverted facts, waived his right to present evidence on his own behalf is without any merit. The record unequivocally indicates that the defense was afforded an opportunity to present a case after the People had rested. Notwithstanding this opportunity to offer evidence of an exculpatory nature, defense counsel admitted that the defense had no case to present.

The record further reveals that the trial court questioned defendant extensively concerning the waiver of his right to a trial by jury. To require that a trial court interject itself into the case at each new step in order to inquire as to a defendant's understanding, absent any indication of incompetence on the part of defendant or counsel, is utterly unreasonable. We know of no authority in this State which purports to impose such a requirement.

It bears noting that there exists an area of Federal case law which addresses the issue of whether Federal courts are obligated by subdivision (c) of Rule 11 of the Federal Rules of Criminal Procedure (in U.S.Code, tit. 18, Appendix) to personally advise defendants of the consequences of their decisions to stipulate to facts which are tantamount to the entry of a guilty plea. The pertinent provisions of subdivision (c) of Rule 11 are as follows:

"Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following:

"(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole term; and

"(2) if the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if necessary, one will be appointed to represent him; and

"(3) that he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and

"(4) that if his plea of guilty or nolo contendere is accepted by the court there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial; and

"(5) if the court intends to...