Opinion
2021-358 N CR
10-26-2023
The PEOPLE of the State of New York, Respondent, v. Paul BROWER, Appellant.
Nassau County Legal Aid Society (Tammy Feman, Rachel Rambo and Daniel Schumeister of counsel), for appellant. Nassau County District Attorney (Kevin C. King and Kelly Gans of counsel), for respondent.
Nassau County Legal Aid Society (Tammy Feman, Rachel Rambo and Daniel Schumeister of counsel), for appellant.
Nassau County District Attorney (Kevin C. King and Kelly Gans of counsel), for respondent.
PRESENT: JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ.
ORDERED that the judgments of conviction are reversed, on the law, so much of the February 24, 2021 order as denied the branch of defendant's motion seeking to withdraw his guilty pleas is vacated, that branch of defendant's motion is granted, and the matter is remitted to the City Court for all further proceedings before a different judge.
Defendant pleaded guilty to two charges of petit larceny ( Penal Law § 155.25 ). On appeal, defendant contends that the accusatory instruments were jurisdictionally defective, that his guilty pleas were not entered into knowingly, voluntarily or intelligently, and that his counsel deprived him of the effective assistance of counsel.
"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" ( People v. Case , 42 N.Y.2d 98, 99, 396 N.Y.S.2d 841, 365 N.E.2d 872 [1977] ; see People v. Dumay , 23 N.Y.3d 518, 522, 992 N.Y.S.2d 672, 16 N.E.3d 1150 [2014] ; People v. Dreyden , 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010] ). Thus, the facial insufficiency of an accusatory instrument constitutes a jurisdictional defect which is not forfeited by a defendant's guilty plea (see Dreyden , 15 N.Y.3d at 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 ; People v. Konieczny , 2 N.Y.3d 569, 573, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ).
Here, two accusatory instruments, both executed by the same detective of the Long Beach Police Department, alleged that, on the respective date and at the respective time, at the Long Beach Long Island Railroad Station, defendant stole a bicycle/motorized scooter that he did not have permission to possess and which did not belong to him, and that the source of the detective's information and belief was "video surveillance from the City of Long Beach Bus Depot, your deponent's identification of [ ] defendant and the written statement of the [v]ictim, whose supporting deposition is attached [ ] and made a part hereof." Despite defendant's contention to the contrary, an allegation in an accusatory instrument that the deponent recognized the defendant is not conclusory and any questions as to the source of the deponent's knowledge is a matter to be raised at trial (see People v. Jones , 77 Misc.3d 5, 10, 175 N.Y.S.3d 413 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2022] ; People v. Singleton , 73 Misc.3d 149[A], 2022 N.Y. Slip Op. 50011[U], 2022 WL 98156 [App. Term, 1st Dept. 2022] ; see generally Konieczny , 2 N.Y.3d at 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 ; People v. Casey , 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ). Moreover, the deponent detective's identification of defendant was not "a conclusion drawn by a police officer that involves the exercise of professional skill or experience, [in which case] some explanation concerning the basis for that conclusion must be evident from the accusatory instrument" ( People v. Jackson , 18 N.Y.3d 738, 746, 944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012] ; see Jones , 77 Misc.3d at 10, 175 N.Y.S.3d 413 ; Singleton , 2022 N.Y. Slip Op. 50011[U] ). Additionally, to the extent that defendant contends that the deponent detective's identification of him constitutes hearsay, which is a nonjurisdictional defect, this contention was waived by defendant's guilty pleas (see Konieczny , 2 N.Y.3d at 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 ; People v. Keizer , 100 N.Y.2d 114, 123, 760 N.Y.S.2d 720, 790 N.E.2d 1149 [2003] ). In any event, merely stating what one sees on a surveillance video, which has no audio and includes no nonverbal assertions, does not constitute hearsay (see Jones , 77 Misc.3d at 9, 175 N.Y.S.3d 413 ; People v. Ogando , 64 Misc.3d 310, 313, 102 N.Y.S.3d 400 [Crim. Ct., N.Y. County 2019] ; People v. Patten , 32 Misc.3d 440, 444 n 1, 927 N.Y.S.2d 542 [Long Beach City Ct. 2011] ; see generally People v. Dunham , 70 Misc.3d 132[A], 2020 N.Y. Slip Op. 51554[U], *1-2, 2020 WL 7759492 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2020] ). Consequently, the accusatory instruments were not jurisdictionally defective (see Penal Law § 155.25 ; People v. Johnson , 71 Misc.3d 133[A], 2021 N.Y. Slip Op. 50357[U], 2021 WL 1618080 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2021] ).
With respect to defendant's ineffective assistance of counsel claim, the record indicates that defendant's attorney provided defendant with meaningful representation in accordance with the New York State standard (see NY Const, art I, § 6 ; People v. Henry , 95 N.Y.2d 563, 565, 721 N.Y.S.2d 577, 744 N.E.2d 112 [2000] ; People v. Benevento , 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; People v. Bouttry , 32 Misc.3d 136[A], 2011 N.Y. Slip Op. 51470[U], 2011 WL 3370913 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2011] ). Moreover, the attorney's performance could not be characterized as either deficient or prejudicial to defendant and, thus, was also in accordance with the federal standard (see US Const Amend VI ; Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ; Bouttry , 2011 N.Y. Slip Op. 51470[U] ).
Defendant moved to vacate his pleas, contending in an affidavit that he was innocent of one of the charges and that he had agreed to take the pleas because, at the time, having been unable to post bail, he had already been incarcerated as a result of these charges for almost two months, and was advised that, in order to be released from jail, he would have to plead guilty to both charges. While bare and unsubstantiated claims of coercion or duress, without more, are insufficient to warrant vacatur of a guilty plea, a court may permit a defendant to withdraw a plea where the record substantiates the defendant's claim that a guilty plea was motivated, at least in part, by some unduly coercive circumstance (see People v. Flowers , 30 N.Y.2d 315, 318-319, 333 N.Y.S.2d 393, 284 N.E.2d 557 [1972] ; People v. Taylor , 212 A.D.3d 891, 893, 180 N.Y.S.3d 729 [2023] ; People v. Wentland , 191 A.D.3d 704, 707, 139 N.Y.S.3d 356 [2021] ; People v. Grant , 61 A.D.3d 177, 183, 873 N.Y.S.2d 355 [2009] ). Here, in addition to the City Court judge telling defendant that he would have to plead guilty to both charges if he wanted to be released, the record demonstrates that throughout the plea negotiations, and even at the plea proceeding, the City Court judge repeatedly told defendant that, when the judge was a child, he had been a victim of a bicycle theft in the City of Long Beach. The judge also expressed his personal beliefs about the seriousness of stealing a bicycle, such as by stating to defendant:
"Certain people in the City of Long Beach would want you to hang for stealing someone's bike and a motor scooter from Long Beach.... You know about what happens when people steal bikes in Long Beach. It really stinks, especially to the person whose bike is stolen."
Thus, based upon the totality of the circumstances, we find that defendant was unduly coerced into pleading guilty (see generally People v. Sanabria , 157 A.D.3d 828, 69 N.Y.S.3d 335 [2018] ; People v. Rogers , 114 A.D.3d 707, 979 N.Y.S.2d 673 [2014] ; People v. Fisher , 70 A.D.3d 114, 890 N.Y.S.2d 477 [2009] ; People v. Richards , 17 A.D.3d 136, 792 N.Y.S.2d 79 [2005] ). In view of the foregoing, the matter should be remitted to the City Court before a different judge.
Accordingly, the judgments of conviction are reversed, so much of the February 24, 2021 order as denied the branch of defendant's motion seeking to withdraw his guilty pleas is vacated, that branch of defendant's motion is granted, and the matter is remitted to the City Court for all further proceedings before a different judge.
GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur.