People v. Walters

• Decision Date: 25 April 1995
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert K. WALTERS, Appellant.
• Court: New York County Court

Page 289

627 N.Y.S.2d 289

164 Misc.2d 986

The PEOPLE of the State of New York, Respondent, v. Robert K. WALTERS, Appellant.

Schoharie County Court.

April 25, 1995.

Frank Klein, Schoharie County Dist. Atty., by J. Russell Langwig, III, Asst. Dist. Atty., for respondent.

Kent J. Gebert, Schenectady, for appellant.

DAN LAMONT, Judge.

Defendant appeals from a decision and judgment of the Town of Schoharie Justice Court, sitting without a jury, finding the defendant in violation of probation, revoking his sentence of probation, and sentencing him For the reasons which follow, the County Court holds and determines that the decision and judgment of the Town Court, Town of Schoharie should be reversed and the violation of probation petition should be dismissed.

to a definite sentence[164 Misc.2d 987] of imprisonment of 360 days, and from the denial of defendant's motion to dismiss the probation violation, and/or vacate his plea of guilty.

BACKGROUND

The affidavit of errors and the Court's return and attachments thereto establish the following background and facts:

The defendant accepted an Alford (see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 [1970] plea bargain arrangement on January 6, 1993 which consisted of a guilty plea to a violation of Penal Law § 130.60, sexual abuse in the second degree, a class A misdemeanor, in full satisfaction of the original charge of sexual abuse in the first degree, Penal Law § 130.65(3), a class D felony. The plea agreement contained a promise of no jail time.

The defendant entered the Alford plea--after fully discussing the consequences with his retained attorney--in order to avoid the cost of a lengthy criminal action, the possibility of a guilty verdict to a more serious charge, and to assure a sentence with no jail time. The Justice Court accepted the plea agreement reached by the People and the defendant.

On January 6, 1993, the defendant was sentenced to a period of three years' probation supervision with various general and special conditions enumerated.

On January 11, 1994, a petition of Violation of Probation was filed with the Town of Schoharie Justice Court alleging a violation of the following special condition of probation:

"Complete a sex offender counseling/treatment program, including any necessary inpatient residence and all aftercare when directed by the Probation Department."

The basis of the violation petition, which is uncontested by the appellant, is the defendant's failure to admit to any factual guilt of sexual abuse during sex offender counseling. Forensic Mental Health Associates, a sexual abuse treatment/counseling facility, would no longer allow the defendant to participate in their program due to his failure to admit to the crime of sexual abuse. The defendant did attend meetings at the facility and maintained his denial until they would no longer treat him.

The defendant was not informed, at the time of entry of his Alford plea, that he would be required to admit in therapy his factual guilt to the underlying charge. The defendant is abiding by all other aspects of his probation order and conditions.

After a hearing, the defendant was found in violation of said condition of probation, his probation was revoked, and he was sentenced to a definite sentence of imprisonment of 360 days by the Schoharie Town Justice on June 14, 1994.

THE LAW

The People do not contest the fact that the defendant entered an Alford plea (North Carolina v. Alford, supra ). This is a plea entered into by the defendant which contains a protestation of innocence, after the defendant has voluntarily, knowingly, and understandingly concluded that his interests require the entry of a guilty plea. In this type of plea the defendant consents to the imposition of a sentence without admitting to his participation in the acts constituting the crime. The plea may be accepted where there is a sound and substantial factual basis supporting the plea. (North Carolina v. Alford, supra; People v. Serrano, 15 N.Y.2d 304, 258 N.Y.S.2d 386, 206 N.E.2d 330 [1965].

Criminal Procedure Law § 340.20(1) makes the provisions of CPL article two hundred twenty applicable to pleas to informations, and changes of pleas thereto, in local criminal courts. Criminal Procedure Law § 220.60(3) provides that: "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 withdraw such plea ..."

It is solely within the discretion of the trial court whether a sentence of probation should be revoked and such decision should not be disturbed on appeal unless there is a clear abuse of discretion (People v. Forman, 105 A.D.2d 984, 481 N.Y.S.2d 819 [3rd Dept.1984], citing People v. Slavin, 52 A.D.2d 1012, 383 N.Y.S.2d 685 [3rd Dept.1976].

CONCLUSIONS OF LAW

The defendant-appellant's motion to withdraw his plea of guilty was not made before the imposition of the sentence of probation on January 6, 1993 and was untimely (CPL §§ 340.20(1) and 220.60(3)); therefore, the Town Court properly summarily denied such motion.

This Court holds and determines that the Town Court's finding defendant-appell...