People v. Pichardo
| Decision Date | 02 December 2003 |
| Citation | 802 N.E.2d 141,1 N.Y.3d 126,769 N.Y.S.2d 791 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JUAN CARLOS PICHARDO, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Legal Aid Society Criminal Appeals Bureau, New York City (Deepa Rajan and Andrew C. Fine of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Cynthia J. Pree and Joseph N. Ferdenzi of counsel), for respondent.
GRAFFEO dissents and votes to affirm in a separate opinion in which Judge G.B. SMITH concurs.
On November 14, 1994, in Supreme Court, New York County, defendant was sentenced to 20 years to life imprisonment after having been found guilty of murder in the second degree. On that day, defendant filed a notice of his intent to appeal.1 Precisely one week later defendant was produced in Supreme Court, Bronx County, in connection with an indictment for criminal sale of a controlled substance in the third degree (one count) and criminal possession of a controlled substance in the third degree (two counts), carrying a possible maximum sentence of 81/3 to 25 years; these were defendant's only arrests.
In Bronx County, defendant agreed to plead guilty to the top count of the indictment in exchange for a sentence of 1 to 3 years to run concurrently with the murder sentence. Defendant pleaded guilty to criminal sale of a controlled substance in the third degree, admitting that on January 5, 1994, he sold one bag of cocaine to an undercover officer in exchange for $20; he was subsequently sentenced to 1-to-3 years' imprisonment.
On June 24, 1998, defendant's appellate attorney moved to vacate his murder conviction, arguing that he had been denied effective assistance of trial counsel.2 On January 11, 2000, the Judge who had presided over the trial vacated defendant's murder conviction and ordered a new trial, concluding that he had not received reasonably competent representation and that counsel's errors seriously compromised defendant's right to a fair trial.3 The court noted that counsel seemed to be unfamiliar with important Rosario material in his possession, failing to impeach the People's primary witness—the only witness connecting defendant to the shooting—and never calling potentially exculpatory witnesses to challenge that identification. In vacating the murder conviction, the Trial Judge coupled these failures with defense counsel's "regrettable ignorance of basic principles of criminal law, his failure to recognize the appropriate scope of cross-examination of his client before putting him on the witness stand, and his failure to effectively challenge the People's identification evidence, misidentification being a defense entirely compatible with and ordinarily accompanying the defense of alibi."
On June 15, 2000 defendant was retried and acquitted of the murder. By this time, he had fully served the 1-to-3-year drug sentence.
Days after his acquittal, defendant brought a CPL 440.10 motion to vacate his Bronx County conviction on the ground that his plea had been induced by the promise that his sentence would run concurrently with the New York County sentence, since set aside. Supreme Court granted defendant's motion, finding that the "appellate court consistently vacated guilty pleas which were induced by a promise of a concurrent sentence following the reversal of the original conviction without noting whether the later sentence had already been served" (internal citations omitted).
The Appellate Division reversed and reinstated defendant's Bronx conviction based on the "totality of these circumstances," citing unrelated indictments in different counties before different judges (298 AD2d 101, 102 [1st Dept 2002]). The Appellate Division further noted that when defendant pleaded guilty in Bronx County the court stated that the sentence would be concurrent "with any other sentence being served," which on its face appeared to promise a concurrent sentence only if there was another sentence to be served (id.). We now reverse and reinstate the order of Supreme Court, Bronx County, vacating the plea.
This Court on several occasions has concluded that when a guilty plea is induced by the court's explicit promise that the defendant will receive a lesser sentence to run concurrently with a sentence in another case, and that conviction is overturned, the defendant may withdraw his plea and face the indictment, since the promise cannot be kept (see People v Taylor, 80 NY2d 1 [1992]
; People v Boston, 75 NY2d 585 [1990]; People v Fuggazzatto, 62 NY2d 862 [1984]; People v Rogers, 48 NY2d 167 [1979]; People v Clark, 45 NY2d 432 [1978]). In all of these cases, defendants raised no challenge to the validity of their pleas—concededly they had admitted their guilt before the court, including factual details of the crimes charged. What was in issue was the fundamentally changed condition that induced their admission of guilt: a sentencing promise based on an explicit understanding that, by virtue of the plea, there would be no additional prison time.
When it is unclear that such a promise was made, vacatur of the plea is unwarranted (see People v Lowrance, 41 NY2d 303, 304 [1977]
). Were the Appellate Division correct in suggesting ambiguity in the plea arrangement now before us, the result might well be otherwise. Here, however, the Bronx court was crystal-clear in promising a sentence concurrent with the New York County sentence. As the Judge told defendant in imposing a 1-to-3-year sentence, "that sentence runs concurrent or together with the sentence you are now serving." Indeed, the Judge himself several times underscored that point.
In our Court, the People's argument centers on the fact that, having completed his drug sentence concurrently with time being served for murder, defendant actually received what he bargained for; thus, the promise was in fact fulfilled. But the fortuity of timing cannot be determinative of the issue, as it was not in Boston or Fuggazzato, where defendants also had served out their lesser sentences by the time they sought vacatur of their pleas. It cannot be that, in these circumstances, a plea may be vacated if defendant happens still to be serving the lesser sentence, and otherwise not.4
What changed essentially here were the facts that induced defendant's plea. In effect, when the murder conviction was vacated, defendant's "concurrent" time became a nullity—in the eyes of the law, it is as if he served no time at all on the murder, and his sentence on the drug charge stood alone, based on an unfulfilled and unfulfillable promise. On this record, we cannot say that defendant would have foregone pretrial and trial rights and pleaded guilty to the top count of the Bronx County indictment—based on the sale of a $20 bag of cocaine to an undercover officer—had it not been for the New York County conviction for murder, of which he now stands acquitted.
Finally, for the future, we note that a better practice might be for the parties in similar circumstances to spell out, on the record, the consequences that will follow upon vacatur of the conviction (see People v Rivera, 195 AD2d 389, 390
[1st Dept 1993]).
Accordingly, the order of the Appellate Division should be reversed and the order of Supreme Court, Bronx County, vacating the plea reinstated.
We respectfully dissent because we do not believe that the Appellate Division erred in concluding that defendant was not entitled to vacatur of his conviction of criminal sale of a controlled substance in the third degree. We would therefore affirm the Appellate Division's determination to reinstate the drug-sale conviction.
In November 1994, defendant pleaded guilty to selling cocaine in return for a 1-to-3-year prison sentence that would run concurrently with a previously imposed sentence for a second-degree murder conviction. After defendant completed the term of imprisonment for the drug sale, his murder conviction was vacated and, in June 2000, he was acquitted on retrial of all charges pertaining to the homicide. Supreme Court subsequently vacated the drug conviction, concluding that it had been induced by the promise of a sentence that would be concurrent to the overturned murder conviction.
We agree with the majority that this Court has permitted plea vacatur where a guilty plea was induced by a promise to allow a defendant to receive a lesser sentence intended to run concurrently with a sentence imposed for another crime...
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