People v. Torres

• Court: New York Supreme Court
• Writing for the Court: MARTIN MARCUS
• Citation: People v. Torres, 671 N.Y.S.2d 912, 175 Misc.2d 903 (N.Y. Sup. Ct. 1998)
• Decision Date: 23 January 1998
• Parties: , 1998 N.Y. Slip Op. 98,124 The PEOPLE of the State of New York, Plaintiff, v. Miguel TORRES, Defendant.

Page 912

671 N.Y.S.2d 912

175 Misc.2d 903, 1998 N.Y. Slip Op. 98,124

The PEOPLE of the State of New York, Plaintiff, v. Miguel TORRES, Defendant.

Supreme Court, Bronx County.

Jan. 23, 1998.

Legal Aid Society (Dennis Murphy and David Berlin, of counsel), for defendant.

Robert T. Johnson, District Attorney of Bronx County (John Grappone, of counsel), for plaintiff.

MARTIN MARCUS, Justice.

In this case, the defendant contends that because of a defect in the manner in which he had previously been convicted of a felony, his new conviction does not render him a second felony offender. I ordered and held a hearing to resolve the contested issues of fact. Both sides agree that on August 20, 1990, in Part N of Bronx County Supreme Court, the defendant signed a waiver of indictment; pursuant to that waiver, Superior Court Information No. 6047/90 (the "SCI") was filed; and the defendant entered a plea of guilty to Attempted Criminal Sale of a Controlled Substance, the sole charge in that SCI. The parties also agree that on October 1, 1990, the defendant was sentenced upon his plea of guilty to one to three years' imprisonment. The defendant contends, however, that this conviction was unconstitutionally obtained because he did not sign the waiver of indictment in open court as required by section 6 of Article I of the New York Constitution.

The procedure for determining whether a defendant is a second felony offender is set forth in CPL § 400.21. Pursuant to that provision, the People have the burden of establishing beyond a reasonable doubt the existence of the prior felony conviction. Once they have, "it is then incumbent upon the defendant to allege and prove the facts underlying the claim that the conviction was unconstitutionally obtained (CPL 400.21, subd. 7, par. [b])." People v. Harris, 61 N.Y.2d 9, 15, 471 N.Y.S.2d 61, 459 N.E.2d 170 (1983). Although it is not entirely without question, it appears that the defendant may employ this procedure to challenge a prior conviction on the ground that it was obtained in violation of the State Constitution. ¹

In the written waiver of indictment, the defendant made the following statements: that he had read its contents, "that under the Constitution of the State of New York, he ha[d] the right to be prosecuted by indictment filed by grand jury"; that he "waive[d] such right and consent[ed] to be prosecuted by superior court information filed by the district attorney"; that the SCI would charge him with the crime of Attempted Criminal Sale of a Controlled Substance in the Third Degree, and that "the superior court information filed [would] have the same force and effect as an indictment filed by grand jury." Attached to the SCI was an order approving the waiver, signed by the judge before whom the plea was taken. In his order, the judge stated: "It appears to the satisfaction of the court from the proceedings held, that the waiver of indictment executed by the defendant complies with the provisions of §§ 195.10 and 195.20 of the Criminal Procedure Law," as in fact it did.

Both section 6 of Article I of the New York Constitution and CPL § 195.20 require that the waiver be signed by the defendant in the presence of counsel. ² In fact, this waiver is signed not only by the defendant, but also by his attorney, Joan Ehrlich-White, Esq. In his order, the judge who accepted the defendant's plea of guilty specifically found that the waiver "was knowingly and intelligently executed by the defendant in the presence of counsel," and the defendant does not now contend otherwise. ³

Section 6 of Article I of the New York Constitution, however, does not merely require that the defendant sign the waiver in his attorney's presence, but that he do so "in open court." It might be argued that when a defendant signs a written waiver of indictment in the presence of his attorney, and a court thereafter makes inquiry of the defendant and specifically finds that he has waived that right knowingly and voluntarily, it is of no constitutional consequence whether the document was signed in open court or out of the court's presence. However, given previous decisions of the Court of Appeals, it appears that the requirement that a state constitutional right be waived in open court must be scrupulously honored.

The right to be prosecuted by an indictment returned by a grand jury is not "merely a personal privilege of the defendant but a 'public fundamental right,' which is the basis of jurisdiction to try and punish an individual.... Infringement of that right constitutes a defect that cannot be waived by a guilty plea...." People v. Boston, 75 N.Y.2d 585, 587, 555 N.Y.S.2d 27, 554 N.E.2d 64 (1990) (citations omitted). Section 6 of Article I of the New York Constitution not only proclaims the right to be prosecuted by indictment, but also sets forth the manner in which the right to prosecution by indictment may be waived. The Court of Appeals has made clear that when the State Constitution establishes a right, and then sets forth the procedure by which that right may be waived, the details of that procedure are not unimportant technicalities, but essential components of the waiver.

Thus, in People v. Page, 88 N.Y.2d 1, 643 N.Y.S.2d 1, 665 N.E.2d 1041 (1996), the defendant was convicted by a jury after he consented to the replacement of one of the regular jurors with an alternate after the jury had commenced its deliberations. Although CPL § 270.35(1) provides that the consent to such a substitution "must be in writing and must be signed by the defendant in person in open court in the presence of the court," the defendant had not done so, and had consented to the substitution orally on the trial record.

Noting that the right to a trial by a jury of twelve was guaranteed under the New York State Constitution, the Court of Appeals followed its earlier decision in People v. Ryan, 19 N.Y.2d 100, 278 N.Y.S.2d 199, 224 N.E.2d 710 (1966), in holding that when a defendant consents to substitution of an alternate for a regular juror during deliberations, the defendant thereby waives the constitutional right to be tried by the twelve jurors selected for the trial. Observing that CPL § 270.35 mirrors the relevant provision of the State Constitution, which "itself unequivocally demands that waiver of a jury trial be accompanied by a written instrument signed by the defendant in open court before the Trial Judge" (88 N.Y.2d, at 9, 643 N.Y.S.2d 1, 665 N.E.2d 1041), the Court inferred from the presence of "the signature and writing requirements" in the State Constitution that they "were ... considered crucial to securing a knowing and intelligent waiver." 88 N.Y.2d at 10, 643 N.Y.S.2d 1, 665 N.E.2d 1041. Accordingly, the Court held the defendant's oral waiver invalid and reversed his conviction.

Just as the State Constitution requires that a defendant who waives a jury do so in a written instrument which he must sign in open court, so it mandates that a waiver of indictment be in writing, that it be signed by the defendant, and that the defendant sign it in open court. Page offers no basis upon which to distinguish the open court requirement from the signature and writing requirements it held were "crucial to securing a knowing and intelligent waiver." To the contrary, Page seems to assume that a waiver executed in open court, that is, before the judge, is also essential to a valid waiver, since the opinion notes that the provisions of the Constitution require not only "that the court obtain a written waiver signed personally by the defendant," but also that "the court obtain [the] jury waiver from the defendant personally." People v. Page, 88 N.Y.2d at 10, 643 N.Y.S.2d 1, 665 N.E.2d 1041. Because there is no basis in law or logic to conclude that what is crucial for waiving a jury is not crucial for waiving indictment, it necessarily follows from Page that if a defendant does not sign a waiver of indictment in open court, the conviction resulting from his plea to the superior court information filed pursuant to the waiver has not been constitutionally obtained.

The question remains whether in this case the defendant has met his burden of proof to establish that he did not sign the waiver in open court. At the hearing, neither side presented testimony from any witness as to where or when the defendant executed the waiver. Neither side called the judge who accepted the defendant's plea, or Assistant District Attorney Zelenka, who represented the People in the plea proceedings. The defendant himself did not testify. The defendant did call Ms. Ehrlich-White, the attorney who represented him in those proceedings, but she testified that she did not recall the defendant's case, and that she not know of her personal knowledge where the defendant signed his waiver of indictment. Although Ms. Ehrlich-White testified that she did not recall any case in which a defendant signed a waiver in open court during the period of time she handled the defendant's case, this was "as much as [she] could say." When specifically asked if it ever happened in one of her cases, she replied "Could I swear it never happened, I don't know. I never recall it happening."

Rather than offering testimony from a witness with a specific recollection of the particular proceedings in question, the defendant points to the lack of a specific statement from the judge who accepted the plea, either in writing or on the record, that the waiver was in fact signed by the defendant in open court, and he relies upon the testimony of the witnesses he called at the hearing who indicated that the practice in that part at that time was not to have a defendant sign a waiver in open court when his or her case was called, but to have the defendant sign the waiver in the back or outside of the courtroom before the case was called. For their part, the People rely upon the testimony of the witnesses they called at the hearing, who denied that there was a...