People v. Rosario
| Decision Date | 09 April 2004 |
| Citation | 777 N.Y.S.2d 258,3 Misc.3d 952 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>ANGEL ROSARIO, Defendant. |
| Court | New York District Court |
Elissa Killian, Liberty, for defendant.
Stephen F. Lungen, District Attorney, Monticello (James Farrell of counsel), for plaintiff.
The defendant, Angel Rosario, was charged in indictment No. 202-03, and arraigned on or about October 29, 2003, on the nine-count indictment charging him with various sexual batteries against three young infant girls,[1] including in count one, a course of sexual conduct against a child; count two, incest; counts 3, 8 and 10, endangering the welfare of a child with respect to the infant daughter child; and with respect to count six, seven, and nine, deviant sexual abuse with respect to the other infant girl child.
The defendant was represented by the legal aid panel by the chief assistant and director, Mr. Stephan Schick. There was pretrial omnibus motion practice and intense and protracted pretrial negotiations conducted on behalf of the defendant through the legal aid panel, wherein there was an offer communicated by the People of 18 years determinate, should the defendant plead guilty and waive appeal and admit his responsibility with respect to the three infant female victims. The legal aid panel was substituted by retained counsel,[2] an experienced criminal defense lawyer, former Assistant District Attorney in Sullivan County and a former village justice in Sullivan County, New York.
The matter was scheduled for pretrial hearings, including Sandoval and Huntley, and pursuant to the renewed negotiations of the defendant's new defense attorney, the defendant entered a plea of guilty pursuant to a plea bargain arrangement, which included a waiver of appeal and plea to three counts of the indictment on February 4, 2004.
At the time of the plea, the defendant was placed under oath, questioned by the court and gave sworn testimony, inter alia, with respect to defendant's pedigree and with respect to defendant's knowing and intelligent voluntary waiver of his rights. Following the defendant's allocution, which, after some difficulty with the defendant owning up to what defendant's attorneys had arranged for the plea bargain arrangement, the defendant, Angel Rosario, entered a plea of guilty to count one of the indictment, course of sexual conduct against a child with respect to his infant daughter; count four of the indictment, course of sexual conduct against a child with respect to defendant's second infant daughter; and count nine, sexual abuse in the first degree with respect to the unrelated infant female child.
The defendant admitted, under oath, and pleaded guilty to engaging in multiple acts of sexual contact and multiple acts of sexual intercourse with an infant female from the time that female infant was between the ages of 6 and 10 years old with respect to count one.
Then, with respect to count four, the defendant pleaded guilty to and allocuted, from on or about September of 2000 through June of 2001, at his residence here in Sullivan County, New York, to having two or more acts of sexual contact with his older daughter, who was under the age of 11 during the entire period of time, wherein the defendant touched the infant female's vagina, breast and buttocks.
With respect to count nine, defendant pleaded guilty to and allocuted that on or about the summer of 1998 at his residence here in Sullivan County, he subjected a third unrelated infant female child to sexual contact by placing his hand in her underwear and touching her vagina.
Following the defendant's pleas of guilty and allocutions, the defendant was clearly advised and instructed by this court to cooperate with the Probation Department. The court also gave the defendant detailed Parker warnings. The court explained, at length, the part of the plea bargain that Mr. Rosario must not get into any trouble between the time of the plea and the time of sentencing, that he was to cooperate with the Probation Department when interviewed by them, and that if these conditions were not met he would be in violation of the plea agreement and the court would not be bound to give him only 18 years in jail, that defendant's conviction would stand and the court would be free to sentence defendant up to 25 years in state prison. Defendant acknowledged that he understood the warnings and consequences of failure to fully cooperate. (See, plea transcript at 37.)
The court went on to further explain to this defendant, and to defendant's counsel that if the defendant, in his presentence report, refuted or denied what the defendant had sworn to in his plea allocution, thus taking a stand contrary to his plea and agreement, that the court in considering remorse and acceptance of responsibility as one factor into accepting the bargained for sentence of 18 years, he would not be entitled to the benefit of the bargained for sentence. The defense attorney, on the record, graciously appreciated the court's advising the client of the importance of the presentence investigation, and defense counsel further, on the record, indicated that she had advised the client of that importance and that the defendant understood it.
On February 18, 2004 the defendant acknowledged readiness to proceed to sentencing. The court noted that the presentencing report, which has been admitted into evidence, was inconsistent with the defendant's plea allocution and appeared to be in violation of the court's clear admonitions to the defendant at the time of the plea with respect to cooperating with the Probation Department.
Pursuant to the authority of People v Hicks (98 NY2d 185 [2002]), this court held a Hicks evidentiary hearing, to establish what admonitions the defendant was given with respect to the issue at bar, and as to what violations, if any, the defendant committed with respect to the "Hicks 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 court will a adopt a standard of proof beyond a reasonable doubt.
This court believes it is appropriate to adopt the highest criminal standard of proof because even though guilt has been established by the defendant's own allocution, the ramifications of the Hicks violation go directly to the sentencing, a substantive part of the conviction, and therefore the standard of proof ought to be the same.
Pursuant to a Hicks hearing, the People introduced, on consent, the plea allocution minutes and called Probation Officer Gerber who...
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