Opinion
4341/42/43/44/45, 4884, 4972, 5000.
Decided October 30, 2006.
For the Village, Dwight D. Kraemer, Esq., Village Attorney and Prosecutor, Westbury, NY.
For the Defendant, Anthony Mastroianni, Esq., Westbury, NY.
This is an application brought pursuant to C.P.L. § 440 to vacate a plea of guilty to a building code violation and a sentence thereon, including a fine of $2,000.00. The defendant submitted an Order to Show Cause with a stay on the execution of sentence application which was signed by this Court. The People have submitted papers in opposition. The defense has referred to a decision of this Court, People v. Woodard, 188 Misc 2d 7 (2002), in support of their application. The circumstances in Woodard were different than those now before this Court. Woodard was represented by counsel and yet neither counsel nor the Court informed the defendant that he would have more than eleven points on his license and would lose it at his plea and sentence. The defendant also had a financial hardship which required him to have a license to get to and from work. For all of those reasons, which the defendant did not articulate until after his plea and sentence, this Court vacated Mr. Woodard's plea and sentence. The prosecutor then offered a reduced charge with fewer points and Mr. Woodard pled guilty and kept his license.
The defendant avers that he does not speak English, only Spanish, and that he did not allocute or speak the words of guilt. He states that his counsel plea bargained for him with the prosecutor, but that he was not present when that occurred; that his counsel at the time did not speak Spanish; that she did not and could not explain the plea bargain to him; and finally, that he did not understand the plea bargain.
The prosecutor responds by stating that the defendant received nine (9) appearance tickets; that the stenographic minutes of the proceedings reflect that the defendant was represented by counsel at the time of his plea and sentence; albeit not his current attorney who now moves to vacate the plea and sentence. While the prosecutor has not said so, the Court notes that the defendant's present application is not accompanied by an affidavit from prior counsel admitting to or suggesting any error or neglect on her part with respect to advising her client of the nature and consequences of the plea.
The prosecutor further affirms that the defendant pled guilty to four (4) out of nine (9) of the appearance tickets; that the maximum penalty on each was a fine of $1,000.00 for a total of $9,000.00 plus a possible jail term of 15 days with respect to each appearance ticket. Instead, the defendant pled guilty to four (4) out of nine (9) appearance tickets imposing fines of $500.00 on each for a total of $2,000.00. The defendant received a "no jail sentence." This too was the by-product of the plea bargain as the Court followed the agreed upon terms as negotiated by counsel. The other charges were disposed of by Adjournments in Contemplation of Dismissal (ACODs), subject to permits being filed and the Building Department making an inspection of the property in order to determine whether it conforms to Code. A Notice of Appeal was not filed. The defendant was given a month to pay the fines and the Court has since extended that to an additional three (3) months at this juncture and pending this Court's determination on this Order to Show Cause.
The prosecutor makes two additional points as follows:
"10. There is no indication in the supporting affidavit of the Defendant that she is in fact not guilty of the charges which she pled guilty to on June 14, 2005. The Appellate Division 2nd Department held in People v. Winbush 199 AD2d 447, 605 NYS2d 385, 2nd Dept. (1993) that a plea of guilty will be sustained in the absence of a factual recitation of the underlying circumstances of the crime if there is no suggestion that the plea of guilty was improvident or baseless (see People v. Richardson) 114 AD2d 956, 454 NYS2d 100; see also People v. Lowe, 149 AD2d 939, 540 NYS2d 73).' Defendant has failed to prove that her plea of guilty was improvident or baseless, therefore the within motion should be denied."
The McLean case cited by the People has facts which are remarkably similar to those presented here and law that is also apropos. While McLean is a First Department case and is not binding upon this Court except as persuasive authority, it does reference People v. Winbush, 199 AD2d 447, 448 (1993), a Second Department case, for a corresponding legal proposition.
In Winbush, supra, the defendant was convicted of a burglary in Kings County after a jury trial and then was convicted on a second indictment upon a plea of guilty. The defendant moved to vacate the second conviction because he claimed that his factual allocution did not make out the elements of burglary. The Appellate Division disagreed and affirmed the conviction. Justices Copertino, Pizzuto, Santucci and Jay were unanimous in their Memorandum Decision. The Court held:
"It is settled law that while a factual basis inquiry is one means of assuring that a plea of guilty is voluntary and intelligent, it is not a constitutional requirement ( see, People v. Nance, 110 AD2d 857, 488 NYS2d 257; Willbright v. Smith, 745 F.2d 779). Thus, a plea of guilty will be sustained in the absence of a factual recitation of the underlying circumstances of the crime if there is no suggestion that the plea of guilty was improvident or baseless ( see, People v. Richardson, 114 AD2d 980, 495 NYS2d 235, 682; People v. Perkins, 89 AD2d 956, 454 NYS2d 100; see also, People v. Lowe, 149 AD2d 939, 540 NYS2d 73). We find no indication that the defendant's plea of guilty was improvident or baseless."
The Court is compelled to agree with the prosecution in this case for the reasons set forth infra. In Woodard, this Court granted relief upon the basis of the case of U.S. v. Udeagu, 110 F.R.D. 172 (1986) wherein Judge Weinstein held that he had not properly advised the defendant at the time of his plea of the terms of his parole release guidelines and supervision. He vacated the plea and the defendant went to trial, was convicted and sentenced to far more jail than if he had stayed with his plea bargain.
The defendant in this case had the use of the Court's interpreter and legal counsel. While the defendant says he/she did not allocute, that is a mischaracterization of the record which consists of eleven (11) pages of colloquy between the Court and the defendant. The plea and sentence occurred on June 14, 2006. The Court went over the plea bargain in considerable detail indicating the severity of the charges; that defense counsel conferenced the case with the prosecutor; that a plea of guilty would be considered a predicate violation if defendant is convicted of any like charges subsequently and involving the same property; the fine recommended in this case and agreed to, which the Court followed and the extent of fines for subsequent convictions. The Court explained an A.C.O.D. and the conditions of it. In a violation case, a defendant does not have to allocute or speak the words of guilt for every element of the charge. A Court can determine the voluntariness of a plea from what is conjunctively stated by the Court and the defendant. This Court finds that that is the case here.
This Court is aware that Village and Town Courts, particularly in upstate New York where many of the judges are not lawyers, have been sharply criticized. See William Glaberson, In Tiny Courts of New York, Abuses of Law and Power", New York Times, p. 1, September 25, 2006; William Glaberson, Delivering Small-Town Justice, With a Mix of Trial and Error, New York Times, p. 1, September 26, 2006; William Glaberson, How a Reviled Court System Has Outlasted Many Critics, New York Times, p. 1, September 27, 2006; and William Glaberson, State's Justice Courts to Face Scrutiny by Assembly Panel, New York Times, p. 1, October 14, 2006. Since the publication of those articles, Hon. Helene Weinstein, Chair of the Assembly Judiciary Committee has announced that she will hold hearings on the subject. In contrast, the Village Courts in Nassau have only lawyer/judges in all of our 62 villages. Our Judges insure that constitutional rights are strictly followed. For example, Village Courts are not Courts of record. See, generally, Thomas F. Liotti, Lawyers Cooperative Practice Guide: Village, Town and District Courts, Thompson/West 2005. While downstate Village Courts are not legally required to keep a stenographic record, most do. Our Village Court does not have a stenographer present for arraignment but we do at all other times. We provide interpreters and have even translated decisions into French, Spanish and Italian. See, People v. Suppa, October 8, 1997, New York Law Journal at 1, 25 and 28. This Court has undertaken many decisive actions on behalf of defendants. It has suppressed evidence in search and seizure cases involving alleged building code violations. See, People v. Ventura, (State Reporter Ref. No. QXK000666) (edited for publication); New York Law Journal, May 25, 2004 at 1, 17, 19 20 and People v. Ventura, 6 Misc 3d 1001 (A), 2004 NY Slip Op 51695(u). Mr. Mastroianni was also the attorney of record in the Ventura, id. case.
The interesting aspect of this case has to do with the legal question of whether the defendant may enter a plea to a violation without an allocution. The law on this point is unclear and this may be a case of first impression in that regard. This Court finds that an allocution in violation cases is not required and that a plea of guilty may be entered by a defendant or by counsel. This Court must presume that legal counsel have discussed their cases with their clients, and that if a plea is being entered, that counsel, as an Officer of the Court, has legal authority to enter it.
In any event, it should be noted that the so-called Boykin v. Alabama, 395 U.S. 238 (1969) rule may apply in felony and misdemeanor cases, does not in this case. For example, the admonishment that a plea of guilty extinguishes the right to a trial by jury has no application in Village Court for two reasons. First, Village Courts in Nassau County do not conduct jury trials and second, a defendant does not have the right to a jury trial on a violation case.
In New York, our Court of Appeals has determined in People v. Harris, 61 NY2d 9, 471 NYS2d 61, 459 NE2d 170 (1983), that "no catechism of rights is required for the entry of a guilty plea." No allocution has also been sanctioned even in felony cases, but obviously the degree of care in taking a guilty plea by the Court must increase with the severity of the crime and the penalties thereon. See, North Carolina v. Alford, 400 U.S. 25 (1970) and People v. Serrano, 15 NY2d 310 (1965). C.P.L. § 220 provides that a defendant may consent to the entry of a guilty plea to the charge. The Court need only assure itself that the plea is being entered knowingly, voluntarily and intelligently. This Court finds that this makes sense since people often enter pleas of guilty not because they are guilty, but for a variety of reasons which are personal, financial and legal. For example, a defendant may wish to avoid the further legal or emotional costs attendant to contesting the charges, but at the same time, may not wish to make an admission which would jeopardize a related civil case.
This Court does not see any real need for courts to belabor a record in violation cases with a lengthy exchange with defendants. Indeed, the sheer numbers of cases passing through our system strongly suggests that it is imperative for all courts to streamline what occurs during court proceedings. Accordingly, all this Court need do whenever a guilty plea to a violation occurs, is satisfy itself that the plea is being entered knowingly, voluntarily and intelligently. That is presumed when a lawyer with legal authority enters the plea.
Present defense counsel has implied, but not specifically stated, that his predecessor was ineffective or that she violated the Sixth Amendment of the United States Constitution in the rendition of legal services to her client. However, on the basis of this record and without more, this Court can not leap to those conclusions. Nothing in the record demonstrates that defense counsel departed from the standard of care applicable to all defense lawyers in this community in similar cases or that but for defense counsel's conduct, the result would be different. See People v. Baldi, 54 NY2d 137, 444 NYS2d 893 (1981) and Strickland v. Washington, 466 U.S. 668 (1984). The Court also must conclude that the representation by the former defense counsel was not merely "nominal." See Jenkins v. Coombe, 821 F. 2d 158 (1987). She plea bargained with the prosecutor and achieved a result that was very favorable to the defendant.
The defendant argues there was no allocution, but this point may be somewhat disingenuous since defendant's present counsel, well known and respected by this Court, has appeared many times without clients and with written authorizations signed by his clients giving him the permission of his clients to enter pleas on their behalf, waiving their appearances and paying fines for them. This Court has allowed counsel to undertake these responsibilities on behalf of their clients, over the objection of the prosecutor who would prefer that defendants be physically present in court. In all of those cases in which the movant's counsel was involved, this Court never required an allocution. It is enough that counsel, an Officer of the Court, indicated that a disposition was ready to be entered. An Officer of the Court, as a member of the Bar, is presumed to know the law and his or her obligations to clients. Unless these matters are controverted by objective facts, this Court may not go beyond the record to speculate on the ineffectiveness of counsel.
While all courts are expected to insure fairness and even the understanding of the proceedings, they cannot and should not attempt to take over the job of counsel. Such initiatives are insulting to members of the Bar and constitute unwarranted judicial intervention. Judges, prosecutors and defense lawyers all have important yet distinctive roles to play in the context of any judicial proceedings. Each must understand their respective roles and not exceed the limits of them. This Court declines to inveigle itself into the proper function of the advocates before it.
This Court finds that the defendant's motion in this case seems to be more about not paying a fine or having a further reduction of it instead of showing that the plea was not knowingly, voluntarily and intelligently made which this Court believes, without question, that it was. Therefore, the defendant's motion is denied and the plea stands. The Clerk is directed to calendar this case for the next available court date, whereupon all fines must be paid. If not paid, the Village Attorney may enter a judgment thereon.
This constitutes the decision of the Court.