People v. Simmons

• Citation: 169 Misc.2d 525,646 N.Y.S.2d 245
• Parties: PEOPLE of State of New York, Plaintiff, v. Cleve SIMMONS, Defendant.
• Decision Date: 27 June 1996
• Court: New York City Court

Page 245

646 N.Y.S.2d 245

169 Misc.2d 525

PEOPLE of State of New York, Plaintiff, v. Cleve SIMMONS, Defendant.

Criminal Court of the City of New York,

Kings County.

June 27, 1996.

Philip E. Sicks, Brooklyn, for defendant.

Charles J. Hynes, District Attorney of Kings County (Nanci Slater, of counsel), for plaintiff.

LEON RUCHELSMAN, Judge.

The question this case presents is whether a defendant has the right to be sentenced by the same judge who accepted the defendant's guilty plea pursuant to a plea bargain. Consequently, is the failure to afford the defendant the same judge to preside over both the plea acceptance as well as the sentencing, grounds for withdrawal of the plea pursuant to CPL 220.60(3)?

Procedural History

On January 6 and 7, 1995 the defendant and his wife, the complainant, became involved in an argument. The defendant assaulted and physically overpowered the complainant. The defendant was charged with Sexual Misconduct, Assault, Menacing and Harassment. On February 28, the defendant assaulted the complainant again and was charged with Assault and Harassment. Additionally, a protective order was issued for the protection of the complainant. On March 29, the defendant violated the protective order and was subsequently charged with Criminal Contempt in the Second Degree (PL 215.50(3)) and Harassment. On January 2, 1996 the defendant pleaded guilty to the criminal contempt charge before Judge Lorin Duckman. Judge Duckman informed the defendant that the maximum sentence which could be imposed was one year and that the sentencing determination would only be concluded after examining the probationer's report. The defendant stated that he understood the judge's instructions and agreed to return on February 26, 1996 for sentencing. On February 26, Judge Duckman was not presiding in Criminal Court, and the sentencing of the defendant was scheduled to proceed in Jury Part 2 as originally indicated.

Defendant now asserts that he can withdraw his guilty plea on the grounds that the judge who accepted the plea will not preside over the sentencing. Defendant maintains that an essential element of the plea negotiations included the assurance that Judge Duckman would preside over the sentencing. Furthermore, defendant contends, he would not have pleaded guilty had he been aware that a different judge would decide the appropriate sentence. This issue which is apparently one of first impression in New York demands an analysis of current plea bargaining and sentencing procedures.

Law

Plea bargaining is the process whereby the defendant and the prosecution mutually agree to the disposition of certain criminal matters thereby obviating the necessity for often lengthy and uncertain trials (Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 [1971], People v. Selikoff, 35 N.Y.2d 227, 360 N.Y.S.2d 623, 318 N.E.2d 784 [1974] cert. den. 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822, People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989]. For a plea to be valid the defendant must voluntarily and knowingly agree to the terms and conditions of the plea (People v. Fiumefreddo, 82 N.Y.2d 536, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993], People v. Greene, 208 A.D.2d 950, 618 N.Y.S.2d 412 [2d Dept., 1994]. A plea of guilty has the functional equivalent of a conviction (Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969].

Therefore, once a defendant has agreed to plead guilty the People are no longer required to prove the case beyond a reasonable doubt (People v. D'Amico, 147 Misc.2d 731, 556 N.Y.S.2d 456 [Sup.Ct.Suff.Co., 1990] aff'd. 179 A.D.2d 671, 578 N.Y.S.2d 610 [2d Dept., 1992]. In fact a plea of guilty marks the end of the criminal case (People v. Taylor, 65 N.Y.2d 1, 489 N.Y.S.2d 152, 478 N.E.2d 755 [1985]. Thus, no trial is conducted nor is the defendant entitled to any of the rights which accompany a trial since they are waived upon pleading guilty (People v. Lee, 58 N.Y.2d 491, 462 N.Y.S.2d 417, 448 N.E.2d 1328 [1983]. On the other hand, a sentence is defined as the "imposition and entry of sentence upon a conviction" (CPL 1.20(14)). When a judge imposes a sentence, he must base the sentence within the context of the crimes charged and the particular circumstances of the offender (People v. Semkus, 109 A.D.2d 902, 486 N.Y.S.2d 793 [2d Dept., 1985], People v. Abrams, 203 A.D.2d 723, 611 N.Y.S.2d 313 [3rd Dept., 1994]. The final sentencing decision rests with the sound discretion of the court (People v. Schultz, 73 N.Y.2d 757, 536 N.Y.S.2d 46, 532 N.E.2d 1274 [1988], People v. Farrar, 52 N.Y.2d 302, 437 N.Y.S.2d 961, 419 N.E.2d 864 [1981] and the sentencing judge may consult with many different sources and evidentiary materials such as prior history reports in helping to determine a proper sentence (People v. Wright, 104 Misc.2d 911, 429 N.Y.S.2d 993 [Sup.Ct.N.Y.Co., 1980].

When a sentence must be imposed following a guilty plea, judges employ the same discretionary principles that are utilized in determining sentences following trials (People v. Guzman, 155 A.D.2d 263, 547 N.Y.S.2d 29 [1st Dept., 1989], People v. Van Hoesen, 213 A.D.2d 944, 624 N.Y.S.2d 468 [3rd Dept., 1995]. Thus, there is no functional or legal distinction between a sentence imposed following a trial or a sentence imposed pursuant to a guilty plea. In both instances, sentencing considerations focus on the nature of the crimes charged, societal dangers, deterrence and rehabilitation. These judicial inquiries take place only after the trial or its functional equivalent is completed.

The defendant maintains that the same judge must preside over both stages of the plea bargain since that was part of the plea agreement. The defendant contends that if that is not feasible then he should be permitted to withdraw the plea pursuant to CPL 220.60(3). This section states:

At any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty to the entire indictment or to part of the indictment, ... to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored.

As a general rule then, a plea cannot be withdrawn unless the defendant can exhibit some evidence of innocence, or some indicia of fraud or mistake inducing the plea. (People v. Benoit, 142 A.D.2d 794, 531 N.Y.S.2d 52 [3rd Dept., 1988]. For example, sentencing the defendant for a different period of time than promised is a breach of the plea agreement and grounds for withdrawal (People v. Gaskins, 171 A.D.2d 272, 575 N.Y.S.2d 564 [2d Dept., 1991].

However, when considering the question whether a different sentencing judge constitutes a breach of the plea agreement, the court notes that New York cases have not discussed this issue. The court, therefore, will turn to other jurisdictions to examine the relevant caselaw. In State v. Manning, 446 A.2d 775, 141 Vt. 192 [1982], the Supreme Court of Vermont held that a defendant was not entitled to the same judge for both stages of the plea bargain. The court explained that the record failed to indicate that requiring the same judge was part of the plea agreement or that the defendant expected as such. Moreover, the court was satisfied that the sentencing judge was sufficiently familiar with the facts of the case to be able to impose a sentence with the same knowledge as the first judge. Therefore, the Court denied defendant's motion.

Similarly, in State v. Russo, 621 A.2d 50, 262 N.J.Super. 367 [1993], the Appellate Division of the Superior Court of New Jersey held that the defendant had no right to have the same judge preside over both the plea acceptance and the sentencing. Additionally, in State v. Carson, 597 P.2d 862 [Utah 1979], the Supreme Court of Utah held that while it may be preferable for the same judge who accepted the plea to also sentence the defendant, it was not...