People v. Powell

CourtNew York District Court
Citation768 N.Y.S.2d 547,196 Misc.2d 977
Decision Date18 August 2003
PartiesTHE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>NATHAN POWELL, Defendant.

196 Misc.2d 977
768 N.Y.S.2d 547

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
v.
NATHAN POWELL, Defendant.

August 18, 2003.


Thomas F. Liotti for defendant.

Denis E. Dillon, District Attorney (Fred B. Klein of counsel), for plaintiff.

OPINION OF THE COURT

DONALD P. DERIGGI, J.

Before the Court of Appeals decided the case of People v Hicks (98 NY2d 185 [2002]), the imposition of an enhanced sentence due to the untruthful statements of the defendant to the Probation Department was not an authorized practice. For instance, in People v Burns (279 AD2d 586 [2d Dept 2001]), the

[196 Misc.2d 978]

Court held that the sentencing court was not authorized to unilaterally impose an enhanced sentence based upon its conclusion that in protesting his innocence during a presentence interview, the defendant violated a condition of his plea of guilty that he would fully cooperate with the Probation Department. In Burns (supra), the Court relied upon several other cases including People v Parker (271 AD2d 63 [4th Dept 2000]), People v Bradshaw (271 AD2d 63, 66 [4th Dept 2000]), People v Campbell (271 AD2d 63, 65 [4th Dept 2000]) and People v Seoud (271 AD2d 63, 67 [4th Dept 2000]).

In those four cases, the Fourth Department held that enhanced sentences were authorized following a plea, where the defendant violated the condition requiring no arrests between plea and sentencing, or did not timely appear for sentencing, or did not complete a drug rehabilitation program or did not attend scheduled Probation Department interviews. The Fourth Department found that those conditions had been expressly approved by the Courts and Legislature as the basis for enhanced sentences. It also found that those conditions were readily established based upon factual information provided to the Court. In the Parker case (supra), the defendant refused to discuss the offense with the probation officer; in Campbell (supra), the defendant told Probation that his lawyer did not help him; in Bradshaw (supra), the defendant initially lied to Probation about his commission of the crime and delayed getting a drug evaluation because he said that he could not afford to pay for it.

In People v Seoud (supra), the defendant, at his plea, acknowledged breaking into a house intending to steal money. He also agreed at the time of his plea that he was satisfied with the manner in which his attorney had represented him and that his plea agreement was not the product of force or threats. The Court, at the time of the plea, stated that the defendant's sentencing commitment was conditioned upon him "telling the truth to the Court." Following the plea and before the sentence, the defendant submitted an affidavit wherein he sought to withdraw his plea, indicating that his attorney had basically forced him to enter the plea of guilty and in the affidavit he professed his innocence. The sentencing court gave him an enhanced sentence but the Appellate Division, as it did in each of the previously noted cases, held that such enhanced sentence, based on a defendant's statements to Probation was not approved by the Courts or the Legislature. The Court also held that the imposition of an enhanced sentence, due to the

[196 Misc.2d 979]

untruthful statements made to Probation or the Court, would permit a court to depart from a negotiated sentence based upon its subjective interpretation of a defendant's conduct rather than verifiable, factual information.

In conclusion, the Appellate Division, Fourth Department, wrote, in Seoud (supra at 70-71),

"Thus, we agree with the long-standing view of the Second Department that such conditions do not relate to the sentencing function of the court and that the violation of such conditions does not warrant additional punishment (see, People v Carr, 135 AD2d 722, 723; People v Daniels, 132 AD2d 667, 668; People v Brunson, 131 AD2d 689, 690; see also, People v Gerena, 219 AD2d 734, 735; People v Stennett, 207 AD2d 847, 848; People v Raffaele, 199 AD2d 545) * * *

"We disapprove of the enhancement of these sentences, therefore, not merely to protect the expectations of these defendants but to maintain confidence in the plea bargaining process itself."

It can be reasonably argued however that the above concepts have been altered by the Court of Appeals in its decision in the Hicks case (supra). In that case, the defendant pleaded guilty to two counts of rape in the first degree and was promised a sentence of 3 to 6 years on each count to run consecutively with each other. At the time of the plea, the court instructed the defendant and the defendant agreed that he would "truthfully answer all questions asked of [him] by the Court [and] * * * the Probation Department" (at 187). The defendant was further notified that if he violated that condition, the sentencing court was not bound by its promise with respect to sentence and an enhanced sentence could be forthcoming. The defendant admitted to the court that he had sexual intercourse with the two children involved. During his interview with Probation however, he denied his guilt. He said he never touched either of the children. The trial court gave him enhanced sentences of 10 to 20 years on each count to run consecutively with each other. The Appellate Division reversed the convictions citing inter alia People v Parker (supra; People v Burns, supra).

The Court of Appeals reversed the decision of the Appellate Division and remanded the case to them for imposition of...

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5 practice notes
  • People v. Roberts, Indictment No. 09-541
    • United States
    • New York County Court
    • April 8, 2010
    ...control of one of the parties to the action, then the provisions of CPL Article 240 have no bearing upon the process (People v. Davis, 196 Misc.2d 977). The "crime scene" herein is unquestionably not within the possession or control of the prosecutor. Although a defendant's access to inspec......
  • People v. Blackwell, Indictment No. 06-1423
    • United States
    • United States State Supreme Court (New York)
    • June 18, 2007
    ...33 AD3d 623, lv. denied 8 NY3d 846; see also, People v. Gonzalez, 9 Misc.3d 344; People v. Rosario, 3 Misc.3d 952; People v. Powell, 196 Misc.2d 977). Based upon the foregoing, the People's application for an order of this Court imposing an enhanced sentence due to the defendant's failure t......
  • People v. Gonzalez, 01234/05
    • United States
    • United States State Supreme Court (New York)
    • July 21, 2005
    ...to an enhanced sentence (People v Hicks, 98 NY2d 185 [2002]; People v Rosario, 3 Misc 3d 952 [Sullivan County Ct 2004]; People v Powell, 196 Misc 2d 977 [Nassau County Ct 2003]). As the Hicks court makes clear, a defendant's failure to answer the Department of Probation truthfully about his......
  • People v. Rosario
    • United States
    • New York District Court
    • April 9, 2004
    ...admonitions." Although it is not clear from the Court of Appeals decision in Hicks nor in the subsequent decision of People v Powell (196 Misc 2d 977 [Nassau County Ct 2003]) as to what standard of proof a trial court ought to use in determining whether or not a violation took place, this c......
  • Request a trial to view additional results
5 cases
  • People v. Roberts, Indictment No. 09-541
    • United States
    • New York County Court
    • April 8, 2010
    ...control of one of the parties to the action, then the provisions of CPL Article 240 have no bearing upon the process (People v. Davis, 196 Misc.2d 977). The "crime scene" herein is unquestionably not within the possession or control of the prosecutor. Although a defendant's access to inspec......
  • People v. Blackwell, Indictment No. 06-1423
    • United States
    • United States State Supreme Court (New York)
    • June 18, 2007
    ...33 AD3d 623, lv. denied 8 NY3d 846; see also, People v. Gonzalez, 9 Misc.3d 344; People v. Rosario, 3 Misc.3d 952; People v. Powell, 196 Misc.2d 977). Based upon the foregoing, the People's application for an order of this Court imposing an enhanced sentence due to the defendant's failure t......
  • People v. Gonzalez, 01234/05
    • United States
    • United States State Supreme Court (New York)
    • July 21, 2005
    ...to an enhanced sentence (People v Hicks, 98 NY2d 185 [2002]; People v Rosario, 3 Misc 3d 952 [Sullivan County Ct 2004]; People v Powell, 196 Misc 2d 977 [Nassau County Ct 2003]). As the Hicks court makes clear, a defendant's failure to answer the Department of Probation truthfully about his......
  • People v. Rosario
    • United States
    • New York District Court
    • April 9, 2004
    ...admonitions." Although it is not clear from the Court of Appeals decision in Hicks nor in the subsequent decision of People v Powell (196 Misc 2d 977 [Nassau County Ct 2003]) as to what standard of proof a trial court ought to use in determining whether or not a violation took place, this c......
  • Request a trial to view additional results

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