People v. Plunkett

• Decision Date: 07 June 2012
• Citation: 948 N.Y.S.2d 233,19 N.Y.3d 400,2012 N.Y. Slip Op. 04378,971 N.E.2d 363
• Parties: The PEOPLE of the State of New York, Respondent, v. David PLUNKETT, Appellant.
• Court: New York Court of Appeals Court of Appeals

19 N.Y.3d 400

971 N.E.2d 363

948 N.Y.S.2d 233

2012 N.Y. Slip Op. 04378

The PEOPLE of the State of New York, Respondent,

v.David PLUNKETT, Appellant.

Court of Appeals of New York.

June 7, 2012.

Audrey Baron Dunning, Ilion, for appellant.

John H. Crandall, District Attorney, Herkimer (Jeffrey S. Carpenter of counsel), for respondent.

Lambda Legal Defense and Education Fund, Inc., New York City (Hayley J. Gorenberg of counsel), and Lambda Legal Defense and Education Fund, Inc., Chicago, Illinois (Scott A. Schoettes of counsel), for American Academy of HIV Medicine and others, amici curiae.

OPINION OF THE COURT

Chief Judge LIPPMAN.

Defendant challenges his conviction for aggravated assault upon a police officer or a peace officer (Penal Law § 120.11), an element of which is the assailant's use of a deadly weapon or dangerous instrument.¹ HE WAS CHARGED WITh that offense by a herkimer county gRand jury based on evidence that he bit a police officer on the finger as the officer attempted to arrest him. Defendant is HIV positive and has a long history of psychiatric illness. His arrest was precipitated by his bizarre behavior and open possession of marijuana in the reception area of his primary physician's office.

Although the indictment, in its top count,² does little more than track the language of Penal Law § 120.11, the People in their bill of particulars specified that the dangerous instrument(s) to which the indictment referred were defendant's teeth. However, in a prior biting case, People v. Owusu, 93 N.Y.2d 398, 690 N.Y.S.2d 863, 712 N.E.2d 1228 (1999), this Court had held that an assailant's teeth could not be deemed “ instruments” within the definition of the Penal Law; indeed, Owusu held categorically that “an individual's body part does not constitute an instrument ” and may not, even if used dangerously to produce injury, be a “ dangerous instrument” within the meaning of Penal Law § 10.00(13)( id. at 399, 690 N.Y.S.2d 863, 712 N.E.2d 1228). Following her receipt of the People's bill of particulars, then, defendant's attorney moved by letter application to append to her client's previously denied omnibus motion an application based upon Owusu. She included with her letter a copy of that decision, noting her view that it bore directly upon the viability of the indictment's first count. She said, “this case speaks to the issue of teeth as a potentially deadly weapon or dangerous instrument. This case held that ‘human body parts such as appellant's teeth could not constitute a dangerous weapon....’ ” Counsel requested on this purely legal ground the first count's dismissal.

County Court, recognizing that this was not a routine omnibus application, responded to it both orally and in a separate written decision. Implicitly acknowledging that a prosecution premised on the use of teeth as dangerous instruments was not viable after Owusu, the court expressed the view that the aggravated assault count could be sustained instead on the theory that the dangerous instrument to which the count referred was defendant's saliva. Defendant's saliva “infected with the AIDS virus,” the court believed, was a substance “readily capable of causing death or other serious physical injury” ³ and, as such, qualified as a dangerous instrument for purposes of the aggravated assault statute. Defendant's teeth, the court explained, were only the means for injecting the dangerous substance into the victim's body.

Just before the trial's scheduled commencement, County Court announced that based on “continuing discussions” an agreement had been reached that defendant would plead guilty to the indictment's top three counts. After advising defendant of the rights he would be waiving by entering the contemplated plea, and of the bargained for sentence, the court separately noted:

“Based upon discussions, you would not be waiving your right to appeal, and you would have your right to appeal, which is one of the things that you had requested as part of your plea. And the Court, based upon certain circumstances that have come up in rulings that I have made, that, in fact, you would have your right to appeal continue” (emphasis supplied).

It is clear that County Court was here referring specifically to its ruling that defendant's saliva could qualify under the Penal Law as a dangerous instrument. The court understood the ruling to be pivotal to the prosecution,⁴ and the record discloses no other issue whose reservation could conceivably have been instrumental in inducing defendant's plea to the indictment's top three counts. Defendant's counsel, moreover, plainly believed that her client possessed a meritorious claim completely decisive of the indictment's most serious charge. Her insistence upon the reservation of that claim, then, would have been a representational imperative.

Defendant's reservation of appellate rights did not, however, avail him at the Appellate Division, where the judgment convicting him was affirmed on the ground that his appellate claims had been forfeited by his plea (77 A.D.3d 1442, 907 N.Y.S.2d 919 [2010] ). A Judge of this Court granted defendant permission to appeal (16 N.Y.3d 835, 921 N.Y.S.2d 199, 946 N.E.2d 187 [2011] ), and we now modify to vacate defendant's conviction for aggravated assault and to dismiss the corresponding count of the indictment.

A guilty plea, we have observed, “generally marks the end of a criminal case, not a gateway to further litigation” ( People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ). Consistently, we have deemed appellate claims challenging what is competently and independently established by a plea forfeited ( see id.), even where the plea was induced and entered upon an assurance that such claims would survive. In People v. Thomas, 53 N.Y.2d 338, 340, 441 N.Y.S.2d 650, 424 N.E.2d 537 (1981) we held that

“[t]he legal sufficiency of a conceded set of facts to support a judgment of conviction entered upon a guilty plea may not be saved for appellate review by conditioning the plea on defendant's right to appeal that issue, even though the prosecutor consents to, and the Trial Judge approves, the entry of such a conditional plea.”

We explained that it would be logically inconsistent to permit a defendant to enter a plea of guilty based on particular admitted facts, yet to allow that defendant contemporaneously to reserve the right to challenge on appeal the sufficiency of those facts to support a conviction, had there been a trial ( see id. at 344, 441 N.Y.S.2d 650, 424 N.E.2d 537). The “solemn act” of entering a plea, itself sufficing as a conviction, we said, should not be permitted to be used as a device for a defendant to avoid a trial while maintaining a claim of factual innocence ( see id. at 344–345, 441 N.Y.S.2d 650, 424 N.E.2d 537).

By the same token, however, where an appellate claim does not challenge what is legitimately established by a plea or where it has been deemed inconsistent with public policy to submerge an appellate claim within a plea, we have recognized that the forfeiture doctrine should not apply. As we noted in People v. Lee, 58 N.Y.2d 491, 462 N.Y.S.2d 417, 448 N.E.2d 1328 (1983)—where we held appellate claims as to the constitutionality of a penal statute not encompassed by the plea forfeiture doctrine—Thomas's application of the doctrine was expressly limited to situations in which the issue proposed for appellate review was the sufficiency of the facts admitted in connection with the plea to support the conviction ( see Lee, 58 N.Y.2d at 494, n., 462 N.Y.S.2d 417, 448 N.E.2d 1328, citing Thomas, 53 N.Y.2d at 344, 441 N.Y.S.2d 650, 424 N.E.2d 537);Thomas was in no way inconsistent with the limiting principle recognized in Lee, that where an appellate claim is not inconsistent with what is properly established by the plea, it is not forfeited ( see id. at 493–494, 462 N.Y.S.2d 417, 448 N.E.2d 1328;see also People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755 [1985] [“since a plea usually removes the issue of factual guilt from a case, resolutionof the question (of what is forfeited by the plea) may be guided by determining whether the claim relates to the factual elements of the crime charged, or to some other, fundamental matter”] ). Of course, that principle was not novel in Lee ( see e.g., Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 [1975] [“A guilty plea ... simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established”] ).

If the question reserved for appeal in this case were whether there was evidence to make out the crime of aggravated assault, the reservation would, under Thomas, be ineffective; the undisturbed plea would operate to forfeit the appellate claim. Somewhat paradoxically, however, such a plea, although effective to the extent of the forfeiture, would be subject to vacatur by reason of having been induced by a promise of appellate review the performance of which Thomas forbids ( see53 N.Y.2d at 344, 441 N.Y.S.2d 650, 424 N.E.2d 537;and see People v. Di Raffaele, 55 N.Y.2d 234, 241, 448 N.Y.S.2d 448, 433 N.E.2d 513 [1982] ). In the event we find his Owusu based challenge to his conviction forfeited by his plea, defendant has asked for, and would be entitled to have, his plea back. Defendant's Owusu claim would then be litigated in the context of the reinstituted prosecution through a trial and any ensuing appeals—hardly a victory for the principle that a plea should function as a bulwark against further litigation.

We do not believe that the interposition of so many steps should be required to resolve the particular very basic, purely legal question defendant has raised, namely, whether he has been charged with and has pleaded to a cognizable offense, where the accusatory instrument, as...