Opinion
September 11, 2000.
Lawrence Janick, defendant pro se.
Howard R. Relin, District Attorney of Monroe County (Robert Mastrocola of counsel), for plaintiff.
OPINION OF THE COURT
Defendant moves to set aside his sentence under C.P.L. § 440.20, on the ground that an enhanced sentence was given to him in violation of his plea agreement.
Procedural Background
Charged by indictment with Grand Larceny in the Third Degree (three counts), and Grand Larceny in the Fourth Degree (four counts), defendant pled guilty, with counsel present, to the entire indictment, by way of a written plea agreement. Defendant was promised a sentence of two to four years imprisonment. The court's promised sentence was conditioned upon certain requirements, which were set forth in the written agreement, and were further explained by the court orally on the record. The relevant condition of the written plea agreement provided that the court would not permit defendant to withdraw his plea (see crossed out provision), would not be bound by its promised term of incarceration, and could elect to sentence the defendant "[a]s it deems appropriate," should the defendant "[v]iolate the law" prior to sentencing. Plea Agreement and Colloquy, at paragraph ¶ 4 ("should I violate the law . . . between now and my sentencing, the court . . . [may enhance]"). By contrast, the court orally advised the defendant, during the plea colloquy, that the sentence would be enhanced to the maximum of 10 — 20 years if, prior to sentencing, the defendant were to "get arrested." Transcript of plea, at p. 9, lines 4-5 (if "you get arrested between now and that time (i.e., sentencing date), . . . you'll receive a maximum . . you'll serve a minimum of ten years, not to exceed twenty years").
The oral promise that the maximum sentence would be given upon a violation, coupled with the notice defendant received that he could not withdraw his plea by the crossed out portion of the written agreement (i.e., the handwritten striking of that portion of the written form giving defendant a right to withdraw the plea if a higher sentence is contemplated), avoids the problem identified in Innes v. Dalsheim, 864 F.2d 974 (2d Cir. 1988), relied on by defendant. Given the consistency between the interdeliniations on the written agreement and the express oral promise to defendant that he would receive the maximum sentence upon a violation of the plea agreement, defendant was unambiguously told "that his guilty plea could not be withdrawn." Id. 864 F.2d at 979. Those of defendant's arguments which are drawn from Innes are, therefore, without merit. I note further that defendant did not seek to withdraw his plea on this separate ground at the Outley hearing.People v. James, 239 A.D.2d 243 (1st Dept. 1997) . Defendant merely demanded specific performance of the 2 — 4 year promise.
Sentencing on the plea was scheduled for July 13, 1999. On June 24, 1999, however, the defendant was arrested on other charges. An Outley hearing was held related to that new arrest, see People v. Outley, 80 N.Y.2d 702 (1993), and on August 18, 1999 the defendant was sentenced to an enhanced term of incarceration of seven and one-half to fifteen years, the sentencing court evidently having decided that its promised 10-20 year maximum sentence was not warranted. Defendant served a notice of appeal, but that appeal has not been perfected. The written plea agreement also included a waiver of an appeal. In January, 2000, after defendant was given the enhanced sentence, the Grand Jury heard the evidence concerning the June 24th charges, and returned a "No True Bill." County Court sealed the file. Defendant now moves for an order setting aside the sentence pursuant to C.P.L. § 440.20 (1). Although defendant's pro se motion papers mention C.P.L. § 440.10, the factual contentions and arguments supporting the motion make clear that relief under § 440.20 is desired.
Discussion
The motion to set aside the sentence must be considered notwithstanding defendant's ability to present the issue upon a direct appeal. llA McKinney's Consolidated Laws of N.Y., C.P.L. § 440.20 (Practice Commentary) . Defendant asserts that, because the Grand Jury ultimately failed to indict him after his arrest on the new charges, and further, because following the "no bill," all records of those new charges were ordered sealed by Monroe County Court, they should not have been considered by the trial court in determining sentence. In the final analysis, he interprets his plea agreement as involving a "no misconduct" enhancement provision, not simply a "no arrest" enhancement provision, and he seeks retroactive effect of the no bill as conclusive evidence that he did not commit the crimes for which he was arrested.
In determining whether the plea agreement evidenced by this record involves a "no misconduct" enhancement provision or a "no arrest" provision, a reviewing court is guided by certain well defined principles. "In construing the promises made in return for the plea, a court must look to what the parties reasonably understood the terms to mean, and resolve any ambiguity in the agreement in favor of the defendant." Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162 (2d Cir. 2000). [T]he state must bear the burden for lack of clarity in the agreement . ." Innes v. Dalsheim, 864 F.2d 974, 979 (2d Cir. 1988) (collecting authorities).
Here, the written agreement, taken by itself, is most assuredly a "no misconduct" agreement. See Spence, 219 F.3d supra, at 168 The written agreement made no reference, even, to the concept of an arrest. It provided that enhancement would occur only "should I violate the law." The oral plea colloquy, however, involved a "no arrest" enhancement provision. The court asked defendant whether he understood that, "if you don't show up . . . for sentencing, or you get arrested between now and that time," he would receive an enhanced sentence. Defendant replied, "Yes, I do." The difference is substantial. On a mere "no arrest" enhancement provision, the People need only prove "a legitimate basis for the arrest" without also proving that defendant actually committed the post plea offense which led to the arrest. People v. Outley, 80 N.Y.2d at 713. Under a "no misconduct" enhancement provision, the People must prove "by a preponderance of the evidence that defendant committed the criminal act underlying the arrest." Spence, 219 F.3d at 169 The presence of these clearly conflicting terms renders the agreement ambiguous because "it cannot be said that `the plea bargain * * * is susceptible to but one interpretation.'" People v. Reyes, 167 A.D.2d 920 (4th Dept. 1990) (quoting People v. Cataldo, 39 N.Y.2d 578, 580 (1976)). As set forth above, the ambiguity must be resolved in defendant's favor.
"As . . . [defendant] reasonably understood the plea agreement with its ambiguity construed in his favor, he had bargained for a term of . . [2 — 4 years] in exchange for a promise not to engage in misconduct [constituting a violation of the law] leading to an arrest." Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d at 169. The district attorney "was therefore obliged to show by a preponderance of the evidence that he committed the criminal act underlying the arrest."Id. 219 F.3d at 169. This burden cannot be met without presentation of "reliable and accurate" information that, indeed, defendant violated the law. People v. Naranlo, 89 N.Y.2d 1047, 1049 (1997); People v. Outley, 80 N Y2d at 712; People v. Parker, 271 A.D.2d 63 (4th Dept. 2000) . Moreover, when the sentencing court only considers whether there was a legitimate basis for the arrest within the meaning of People v. Outley,supra, "without [in addition requiring] the government . . . to prove that he committed the alleged act for which he was rearrested[,] * * * it is manifestly wrong to void . [defendant's] side of the plea bargain based only upon the legitimacy of an arrest, absent proof that he most likely committed the act charged." Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d at 169.
Application of these principles to defendant's case, however, does not help him on this motion. The sentencing court conducted a hearing pursuant to People v. Outley, supra, and ultimately applied the Outley standard to what it considered was a "no arrest" enhancement provision. But the proof submitted by the prosecution, and the court's subsequent factual findings, went considerably beyond what Outley requires. Defendant's June 24th arrest involved a charge of Grand Larceny in the Fourth Degree and Criminal Impersonation in the Second Degree. The People's proof at the Outley hearing consisted of the victim's testimony, which fully described conduct of the perpetrator sufficient to satisfy each of the elements of these two crimes. Although the victim could not identify the defendant from a photo lineup, and was not asked to identify the defendant at the Outley hearing, he testified that the perpetrator touched his car in a number of places during commission of the crimes. The car's surface was subsequently analyzed by the police and was found to contain defendant's fingerprints. Expert testimony concerning the lifting of the prints, and the fingerprint analysis showing that they matched fingerprints of the defendant, was fully presented at the Outley hearing, and was subject to cross examination. At the conclusion of the hearing, the sentencing court referred to the People's standard of proof under Outley, but found from the evidence presented that the testimony "more than sufficiently establishes a legitimate basis for his arrest." Hearing Transcript, at 161. In fact, the People tried their entire case at the hearing.
On this record, therefore, the People met the standard of proof — that the defendant "most likely committed the act charged" — held applicable to this type of plea agreement in Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d at 169. There was preponderant evidence of guilt of the underlying charge. Furthermore, this court's careful reading of the entire record of theOutley hearing yields the ready conclusion that there was clear and convincing evidence of guilt. Whether such additional finding is necessary in this case, because of the extent of the sentence enhancement, is open to debate. See United States v. Watts, 519 U.S. at 156, 117 S.Ct. at 637-38; United States v. Gipante, 94 F.3d 53, 56 (2d Cir. 1996). But this court can make such a finding without hesitation on this record.
The difficulty, however, arises from a number of state cases which clearly assume that a sentencing court's consideration of conduct which is the subject of an acquittal voids the sentence. See People v. Hall, 46 N.Y.2d 873, 875 (1979); and cases collected at People v. Murray, 184 Misc.2d 755, 709 N.Y.S.2d 806 (Sup.Ct. Kings Co. May 16, 2000). As persuasively demonstrated in Murray, however, these cases are not supported by citation to statute (the C.P.L. contains no such prohibition), and are decisions interpreting the Federal Constitution which are no longer authoritative in light of the Supreme Court's decision in United States v. Watts, 519 U.S. 148, 117 S.Ct. 633 (1997) (per curiam). Inasmuch as an acquittal "`does not prove that the defendant is innocent,'" but only "`prove s the existence of reasonable doubt as to his quilt,'" and inasmuch as "it is impossible to know exactly why a jury found a defendant not guilty on a certain charge," and that a "jury cannot be said to have "necessarily rejected' any facts when it returns a general verdict of not guilty," the "acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence." United States v. Watts, 519 U.S. at 155, 157, 417 S.Ct. at 637, 638 (quoting United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361, 104 S.Ct. 1099, 1104 (1984)). See also, Reed v. State of New York, 78 N.Y.2d 1, 7-8 (1991) ("an acquittal is not the equivalent to a finding of innocence" and it does not have preclusive effect in a subsequent proceeding involving a lower standard of proof) . The extensive citation of authority in People v. Storelli, 216 A.D.2d 891 (4th Dept. 1995) shows full recognition of these principles, although they were not invoked by the facts of that case. See also, People v. Madera, 262 A.D.2d 986 (4th Dept. 1999) (same — — by citation of People v. Villanueva, 144 A.D.2d 285 (1st Dept. 1988) ("a court may not use extraneous crimes to enhance a sentence unless it first has ascertained, by way of accurate, reliable evidence that defendant actually committed those crimes")). When the Supreme Court has ruled on a Federal Constitutional issue, its decision on the federal issue must be followed in favor of state decisions to the contrary. Cf., People v. Sierra, 85 A.D.2d 546, 546 — 47 (1st Dept. 1981). Accordingly, the sentencing court was entitled to consider, given the nature and quality of the proof submitted at the Outley hearing, conduct that was the subject of an acquittal.
The observation to the contrary in Spence, 219 F.3d at 169, that state law prohibits consideration of acquitted conduct, does not appear to be based on anything other than state cases interpreting the federal constitution. See infra, fn. 3. As such, it is not an authorative statement of New York law. People ex rel. Central Park, N. E.R.R. Co. v. Willcox, 194 N.Y. 383, 386 (1909); Merrill Lynch, Pierce, Fenrer Smith, Inc. v. McLeod, 208 A.D.2d 81, 83 (1st Dept. 1995); Orange Rockland Utilities, Inc. v. New England Petroleum Corp., 60 A.D.2d 233, 235 (1St Dept. 1977).
That this case involves a "no bill" by a Grand Jury does not alter the result. Just as no inference of a fact finding may be made by a general acquittal, a general "no bill" also does not permit an inference of fact finding, given that the "authority to indict upon a showing of sufficient evidence is permissive only" under C.P.L. § 190.65 (1). People v. Sullivan, 68 N.Y.2d 495, 500-01 (1986) (the statute carries forward for New York "centuries of history" vouchsafing to a Grand Jury the "power to extend lenity" to a defendant who might otherwise lawfully suffer an indictment). Accordingly, the sentencing court was permitted to consider defendant's conduct underlying his arrest despite the "no bill." In summary, there is no statutory bar to consideration of conduct underlying an acquittal or "no bill" in the Criminal Procedure Law. Because the state cases holding that such a bar exists have been abrogated by the Supreme Court's decision in Watts, and no state constitutional rule has been created by our Court of Appeals at variance with Watts, the court finds that the sentence enhancement of which the defendant complains was constitutionally appropriate.
In one case, People v. Grant, 191 A.D.2d 297 (1st Dept. 1993), the New York Constitution was cited in support of the proposition that a sentencing court cannot consider conduct that was the subject of an acquittal. But this observation appears to be sui genesis in the New York cases and is not supported by reference to any state constitutional rule created by the New York Court of Appeals. In the absence of Court of Appeals' precedent finding a separate state constitutional rule, supreme court should not create such a rule. Matter of Hynes v. Tomer, 237 A.D.2d 52, 61 (2d Dept. 1997), rev'd on other .gr., 92 N.Y.2d 613 (1998); People v. Keta, 165 A.D.2d 172, 177 — 78 (2nd Dept. 1991),rev'd on other gr., 79 N.Y.2d 474 (1992); People v. Lucas, 183 Misc.2d 639, 644 (Sup.Ct. Monroe Co., 1999). Cf., People v. Robinson, 271 A.D.2d 17, 711 N.Y.S.2d 384 (1st Dept. July 6, 2000) (evidently leaving open whether an Appellate Division may first articulate a separate state constitutional rule at variance with federal constitutional standards).
CONCLUSION
Defendant's motion to vacate the sentence under C.P.L. § 440.20 is denied for the several reasons stated above. Finally, defendant makes a number of challenges to the factual predicate for his June 24th arrest, and in particular accuses the alleged victim of perjury. None of these challenges were presented at the Outley hearing, however, and a challenge to the constitutionality of his arrest is not properly brought in this proceeding. The charge of perjury and evidence tampering is wholly conclusory and without factual support. To the extent that defendant is challenging the veracity of the proof presented at the Outley hearing, defendant fails to allege that the information that he now presents was not available to his counsel at the Outley hearing.