People v. Spitaleri

• Decision Date: 23 February 1961
• Citation: 9 N.Y.2d 168,173 N.E.2d 35,212 N.Y.S.2d 53
• Parties: , 173 N.E.2d 35, 86 A.L.R.2d 322 PEOPLE of the State of New York, Respondent, v. Charles Angelo SPITALERI, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 53

212 N.Y.S.2d 53

9 N.Y.2d 168, 173 N.E.2d 35, 86 A.L.R.2d 322

PEOPLE of the State of New York, Respondent, v. Charles Angelo SPITALERI, Appellant.

Court of Appeals of New York.

Feb. 23, 1961.

William J. Nicoson, Anthony F. Marra and William E. Willis, New York City, for appellant.

Frank D. O'Connor, Dist. Atty., Long Island City (Morton Greenspan, New York City, and Benj. J. Jacobson, Long Island City, of counsel), for respondent.

DESMOND, Chief Judge.

Defendant was convicted by a jury in Queens County Court of the felony of possessing a quantity of the narcotic drug heroin with intent to sell it (Penal Law, Consol.Laws, c. 40, § 1751, subd. 2). The affirming majority in the Appellate Division filed no opinion. The two Justices who dissented wrote that (205 N.Y.S.2d 176, 11 A.D.2d 785) 'it was error, warranting reversal and a new trial, to admit over defendant's objections, as part of the People's direct case, evidence that the defendant had pleaded guilty to an attempt to commit the crime charged and, with the court's consent, had withdrawn such guilty plea and substituted a plea of not guilty'. The dissent cited Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009, as its authority and referred to People v. Steinmetz, 240 N.Y. 411, 148 N.E. 597, and People v. Ariano, 264 App.Div. 426, 35 N.Y.S.2d 818.

Although defendant as his own witness at the trial denied his guilt, he does not now dispute that the People's proof was enough for conviction. He does press on us the point made by the dissenting Appellate Division Justices that it was injustice and error to lay before the jury as evidence of his guilt his earlier plea of guilty which the court had allowed him to withdraw. This major question of law and justice has not been before us since 1925 when in People v. Steinmetz, 240 N.Y. 411, 148 N.E. 597, supra, this court ruled that the taking in evidence of proof of an earlier withdrawn guilty plea in the same case was not error. Actually, the Steinmetz case could be distinguished here since the showing that Steinmetz had pleaded guilty came in during his cross-examination (see Steinmetz opinions in the Appellate Division, 209 App.Div. 83, 204 N.Y.S. 349). It would not be incorrect, therefore, to say that we have never had occasion to decide whether the prosecution on its own direct case may present such evidence. However, the Steinmetz opinions in this court dealt with the larger question. The majority regarded Steinmetz's plea of guilty as a confession of guilt and probative of the facts constituting the crime, a position which makes no distinction between direct proof by the People and cross-examination of the defendant if he goes onto the witness stand. It would be possible, also, on the present record to take a still narrower ground of decision. The guilty plea which was made by this defendant and withdrawn and then proven before the jury was not a plea to the indictment's charge of feloniously possessing heroin but to an attempt to commit that crime. It is hard to ascribe any meaning to an admission of an attempt to possess something. We could hold that such a plea, whatever it amounts to for pleading purposes, is not a confession of actual possession. However, defendant neither here nor at the trial made any such argument and since under New York law (see Penal Law, § 2; People ex rel. Blumke v. Foster, 300 N.Y. 431, 91 N.E.2d 875) there can (apparently) be a crime of 'attempt' to commit any other listed crime, we will pass the point.

Two years after this court decided People v. Steinmetz, supra, the United States Supreme Court in Kercheval v. United States, 1927, 274 U.S. 220, 47 S.Ct. 582, 584, supra, unanimously gave a negative answer to the question of whether a plea of guilty withdrawn by leave of court is admissible against the defendant on the trial of the issue arising on a substituted plea of not guilty. The court's conclusion was that 'the weight of reason is against the introduction in evidence of a plea of guilty withdrawn on order of court granting leave and permitting the substitution of a plea of not guilty.' Justice Butler's opinion in Kercheval reasoned it out like this (274 U.S. at pages 223-224, 47 S.Ct. at page 583): 'A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. * * * But, on timely application, the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence. * * * The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just. * * * The effect of the court's order permitting the withdrawal was to adjudge that the plea of guilty be held for naught. Its subsequent use as evidence against petitioner was in direct conflict with that determination. When the plea was annulled it ceased to be evidence. * * * As a practical matter, it could not be received in evidence without putting petitioner in a dilemma utterly inconsistent with the determination of the court awarding him a trial. * * * 'The withdrawal of a plea of guilty is a poor privilege, if, notwithstanding its withdrawal, it may be used in evidence under the plea...