Judgment Day

People v. Goldstein (May 22, 2008)

Defendant pleaded guilty to multiple counts of reckless endangerment and aggravated unlicensed operation of a motor vehicle, with the understanding that the sentences would run concurrently, unless he failed to appear for sentencing. Upon the defendant’s twice failing to appear for sentencing, the third count of his sentence was imposed to run consecutively. Defendant moved to withdraw his plea on the ground that it was not voluntary, and that his allocution failed to establish the element of depraved indifference as to the reckless endangerment counts. Denial of defendant’s motion was affirmed. The Court held defendant’s admission was voluntary despite his answering “I don’t know” in response to the court’s inquiry about his appreciation of the dangers created by his conduct (speeding through a construction zone). Defendant also adopted his counsel’s admission of the details of the charges by failing to object to his counsel’s actions.

People v. Rivera (May 22, 2008)

Defendant, who pleaded guilty to assault and weapons charges as a repeat felony convict, was not advised prior to his sentencing of the duration of the mandatory period of post-release supervision that was a component of his sentence. Defendant contended on appeal that this error made his plea one that was not entered into knowingly, voluntarily and intelligently as a matter of law, and which could be asserted on direct appeal in the absence of a post-allocution motion. Plea is vacated, conviction reversed and matter remitted for further proceedings. The Court of Appeals has now established that “where a trial judge does not fulfill the obligation to advise a defendant of the duration of post-release supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a post-allocution motion.” Here, there was nothing in the record indicating that the duration of defendant’s post-release supervision was made known to him during his allocution. Thus, when the duration of the post-release component was first made known to the defendant at his sentencing, it constituted fundamental reversible error as a matter of law.

People of the State of New York ex rel. Lucas Foote v. Piscotti (May 22, 2008)

Defendant brought a habeas corpus proceeding contending that DOCS lacked authority to add a period of post-release supervision that was not imposed by the sentencing court. The Writ was sustained and DOCS is directed to discharge petitioner. In accordance with the recent Court of Appeals decision in Matter of Garner v. NYSDOCS (April 29, 2008), only a judge may impose a period of post-release supervision as part of a sentence.

People v. Carter  (May 8, 2007)

Carter pled guilty to third degree burglary. The county court promised to sentence him to 2-4 years in prison, conditioned upon his return to court on the date of sentencing. The court further advised Carter that if he failed to appear, the court would not be bound by the plea bargain. Carter did not return for sentencing. His attorney advised the court that Carter’s parents said he was “eight states over” and the court imposed a sentence, in absentia, of 3 ½ to 7 years.

The Third Department vacated Carter’s sentence and remanded the case.

CPL 380.40 provides that a defendant must be personally present at the time sentence is pronounced. While this right may be waived where a defendant fails to appear at sentencing, he or she may be deemed to have waived the right to be present only if the defendant was previously advised of the consequences of failing to appear at sentencing.

Didn’t the county court advise Carter of the consequences of failing to appear at sentencing when it informed Carter if he failed to appear the court would not be bound by the sentence?

Not according to the Third, which held:

Although the County Court informed defendant that he could be subject to an enhanced sentence if he failed to appear for sentencing, the court did not specifically articulate that sentencing could proceed in his absence.

I find this holding interesting because of the degree of specificity the court required. Because the lower court merely informed Carter that it would not be bound by the plea deal, but did not inform him sentencing would proceed in his absence, Carter never waived his right to be present at sentencing. In some of its recent decisions in plea cases, however, the Third has taken the opposite approach when a defendant challenges the specificity of the plea colloquy. In those cases, the court has held the judge’s questioning was essentially “good enough.”

The Third continued:

Moreover, even where a defendant is found to have waived the right to be present at sentencing, proceeding with sentencing in absentia is not automatically authorized; rather the trial court must exercise its sound discretion upon consideration of all appropriate factors, including the possibility that defendant could be located within a reasonable period of time. Here, just one hour after the time set for defendant's appearance, the County Court sentenced him without first taking any reasonable measures to secure his attendance.

I wonder what the Third considers “reasonable measures” when the only information concerning defendant’s whereabouts was that he was “eight states over.” It’s not like he was sitting at home on the couch and the court could have given him a call.

Decisions from the NYS Appellate Division, Third Department (May 1, 2007)

People v. Charlotten

The defendant pleaded guilty to criminal contempt for violating an order of protection that was no longer in effect. Defendant brought a CPL 440.10 motion to vacate his plea, arguing ineffective assistance of counsel. The court held “as the temporary order of protection which defendant admitted to violating was a nullity, he pleaded guilty to conduct which did not constitute a crime. Counsel's failure to recognize the invalidity of the court order thus amounted to an error on a clear-cut and completely dispositive issue. Moreover, the defendant demonstrated at the hearing that he would not have pleaded guilty but for this error by counsel." The Superior court information was dismissed.

People v. Murphy

The defendant was convicted by a jury of second degree murder. After invoking his right to counsel at the beginning of a police interrogation, he was given a phone to obtain a lawyer. The police not only advised the defendant that the call would be recorded, but the phone had a notice to this effect as well. Defendant placed a call and spoke to his father and sister for 14 minutes. At trial, the prosecution played the entire recording, without redaction, which was replayed during jury deliberations upon request by the jury. The court found the defendant’s statements in the recording were admissible because he was on notice that they would be recorded. The recording, however, also contained repeated references to defendant's invocation of both his right against self-incrimination and his right to counsel. The court held “it is well settled that a defendant's invocation of those rights during custodial interrogation may not be used against him as part of the People's case-in-chief.” This error was compounded when the same information was elicited during the testimony of a police officer, and during defendant’s cross-examination when he was asked about his failure to come forward with an exculpatory version of events. Conviction was reversed and a new trial was ordered.

People v. Baker

The defendant was convicted by a jury of vehicular homicide and DUI. He moved to set aside the verdict, pursuant to CPL 330.30, on the ground that his BAC of .10 was admitted into evidence without a proper foundation. The court found the prosecution did not elicit testimony from its expert regarding the specific steps he took to ensure the reliability and accuracy of the testing equipment, or whether the test was properly performed. “General statements about what he typically does with a blood sample are insufficient in the absence of testimony that he actually took such measures with regard to this blood sample.” The court granted a new trial.

New Legislation

S6687: Amends the civil practice law and rules, in relation to enforceability of certain foreign judgments

A9818: A mends the penal law, in relation to including injuring persons sixty-five years or older as an assault in the second degree

April 24, 2008 was Judgment Day for the Appellate Division, Third Department, and a number of criminal case decisions were released. Once again, most of the cases involved plea deals, which almost always result in decisions restating long-standing precedent and affirming the lower court’s ruling.

People v. Gause, however, is worth discussing. Garlyn M. Gause was an inmate at Elmira Correctional Facility when corrections officials ordered a general frisk of cells on the gallery where Gause was housed. During the frisk, he was handcuffed and removed from his cell to an area where he was directed to sit on a special chair, known as the BOSS chair. The BOSS chair detects metal objects. Defendant was asked twice if he had metal objects on him. He answered in the negative, but the BOSS chair said otherwise. Gause was taken to the frisk room, his handcuffs were removed, and he was advised he would be strip frisked. Prior to the frisk, defendant was asked if he had anything on him and he replied that he had a weapon hidden in his buttocks. Gause then voluntarily surrendered a razor blade.

Gause was charged with promoting prison contraband in the first degree. Prior to trial, he moved to suppress his statement admitting to possession of the contraband. The County Court denied the motion and Gause was convicted after a jury trial and sentenced as a second felony offender to a prison term of 2½ to 5 years.

On appeal, Gause argued the County Court erred in denying his motion to suppress the statement because he made it without first having been given Miranda warnings. Both sides conceded no warning were read. The County Court found Miranda warnings were unnecessary because the question that prompted the defendant's admission was motivated by a safety concern relating to the removal of a dangerous weapon from the correctional facility.

After review, the Third Department stated the following:

Miranda warnings need only be administered to a prison inmate where the circumstances of the detention and interrogation . . . entail added constraint that would lead a prison inmate reasonably to believe that there has been a restriction on that person's freedom over and above that of ordinary confinement in a correctional facility.

Here, defendant was removed from his cell, handcuffed, detained and directed to sit on the BOSS chair and then escorted to the frisk room in the special housing unit under close guard where he was to be strip frisked. Under these circumstances, we find that defendant was under added constraint of the type that required him to be given Miranda warnings prior to any custodial interrogation.

The public safety exception to the Miranda rule has been applied where law enforcement officials have posed questions motivated by a concern for their own safety and that of the general public, such as to ascertain the location of a weapon in a public area, and not for the purpose of obtaining an incriminating response.

Significantly, it has not been applied in a prison context such as this where a question was asked of an inmate by a correction officer during a strip frisk, the very purpose of which was to seize a weapon. Inasmuch as it may be reasonably inferred that the question was intended to elicit incriminating information in furtherance of the strip frisk, we are of the view that the public safety exception is inapplicable and that Miranda warnings should have been given to defendant.

Nevertheless, we find this error to be harmless under the circumstances presented. The testimony of the correction officer who conducted the strip frisk together with the blade itself, the admissibility of which was not challenged at trial, provided overwhelming proof of defendant's guilt.

The Third's War Room April 17 was Judgment Day for the Appellate Division, Third Department, and a number of criminal case decisions were released. The holdings are pretty bland—most of the cases involved plea deals, which almost always result in decisions restating long-standing precedent and affirming the lower court’s ruling.

People v. Saddlemire, however, may be of interest to other assigned counsel or attorneys who regularly handle plea cases. Often times while I’m waiting for lower court trial documents, I’ll be assigned a few plea cases. More often than not, the trial court is so diligent in questioning the defendant that very little is available for argument on appeal. The voluntariness of the plea, ineffective assistance of counsel, and the sentence are the main issues for review. The court’s holding in Saddlemire, while nothing new, gives us even less to work with.

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