| People v Goldstein |
| 2008 NY Slip Op 04571 [51 AD3d 1271] |
| May 22, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JosephGoldstein, Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Sullivan County (Ledina, J.),rendered April 13, 2007, convicting defendant upon his plea of guilty of the crimes of recklessendangerment in the first degree (two counts) and aggravated unlicensed operation of a motorvehicle in the first degree.
At a time when his driver's license was suspended and had been previously suspended morethan 20 times, defendant was pulled over by police for failing to stop at a stop sign. When theofficer asked to see his license, defendant took flight and drove away, allegedly reaching speedsof 70 to 80 miles per hour while the officer gave chase. When defendant sped through a one-laneconstruction zone, two flag people had to jump out of the way to avoid being struck. Defendantwas ultimately apprehended and later charged in a 23-count indictment that included two countsof reckless endangerment in the first degree (counts 1 and 2), one count of aggravated unlicensedoperation of a motor vehicle in the first degree (count 3), two misdemeanor counts of recklessdriving and 18 separate additional violations of the Vehicle and Traffic Law.
Defendant agreed to the terms of a plea bargain in which he would plead guilty to the threefelony counts of the indictment in satisfaction of all 23 charges, waive his right to appeal and, asa second felony offender, receive sentences of 3½ to 7 years on counts 1 and 2, and1
Defendant now appeals, contending that County Court should have granted his motion towithdraw his guilty plea because his plea was not voluntary. Specifically, he argues that hisallocution failed to establish the element of depraved indifference as to the recklessendangerment counts, he was coerced by the court's statement that he could receive consecutivesentences if convicted after a trial and his counsel was ineffective in advising him to accept theproposed plea bargain, including the stipulated sentence. Upon our review of the record,however, we find that the plea as rendered was voluntarily and knowingly given and wasaccepted by County Court only after it had been established that defendant, with the benefit ofcounsel, had a full and complete understanding of the plea's impact and had made a knowing andintelligent waiver of his rights.
As for the element of depraved indifference (see Penal Law § 120.25),defendant specifically admitted that he was operating a large sport utility vehicle at a high rate ofspeed through a highway construction zone where he knew there were workers and flag peopledirecting traffic. His professed inability to recall at the time of his plea that they had been placedin grave danger does not render his guilty plea invalid. Nor do we read defendant's answer toCounty Court's inquiry to be a denial that he knew that he had actually endangered the workers'lives. Since as he was asked instead whether he could have killed one of the workers if he had hitthe worker and he ultimately answered, "I don't know," his equivocation sheds no light on whatrisks he perceived and yet disregarded when he sped through the construction zone. In any event,his comment does not suggest that his reckless conduct resulted from a preoccupation with hisown problems rather than an utter lack of regard for the lives of others (compare People v Feingold, 7 NY3d288, 295 [2006]). What he did admit—and what his counsel expressly stated on hisbehalf and in his presence—establishes that he was well aware of the nature of the chargespending against him and, after consultation with counsel, was prepared to admit his guilt. Heacknowledged that he had been charged by indictment with fleeing from the police at high speedthrough the construction zone, failing to comply with the directions of flag people and puttingthese workers at grave risk of death. When counsel, rather than defendant, stated in response toCounty Court's question that defendant did not dispute the allegation that he drove "so close [tothe workers] that [he] created a situation that was very dangerous," defendant did not deny it. Nordid defendant do anything to repudiate counsel's further statement that "we don't dispute theallegations and I have had an opportunity to review the allegations, as well as the statement withmy client, and we don't dispute the voracity [sic] of the situation." From the contextwhich these statements were made, we must conclude by his silence that defendant adopted themand made them his own for purposes of his plea (see People v Hadden, 158 AD2d 856,857 [1990], lv denied 76 NY2d 847 [1990]; see also People v Brown, 98 NY2d226, 233 [2002]; People v Cassas, 84 NY2d 718 [1995]).
Further, defendant, at the time of his plea, was a 30-year-old college student who had [*3]extensive prior contacts with the criminal justice system. Giventhis, together with his awareness of the nature of the charges, his admissions, his professedinability to recall and his failure to contradict his counsel's statements, defendant's allocutioncannot be said to cast doubt upon the culpable mental state of utter disregard for the lives ofothers that is inferable from these circumstances (see People v Glanda, 18 AD3d 956, 958-959 [2005], lvdenied 6 NY3d 754 [2005]; see generally People v Feingold, 7 NY3d at 296). Thus,defendant's statements given at the time of his guilty plea did not effectively negate an essentialelement of the crime to which he pleaded (cf. People v Ramirez, 42 AD3d 671, 672 [2007]). Even ifdefendant's allocution were deemed factually insufficient, a challenge on that basis is precludedby his waiver of the right to appeal (seePeople v Jackson, 39 AD3d 1089, 1090 [2007], lv denied 9 NY3d 845 [2007]).
We also are unpersuaded by defendant's argument that he was misinformed that consecutivesentences could be imposed for his crimes. The indictment alleged that defendant endangeredtwo different flag people. While the record does not disclose the length of the construction zone,neither did defendant dispute the prosecutor's assertion in response to his motion to vacate hisplea that the flag people were at opposite ends of the zone. Rather, defendant contended only thathis driving through the zone constituted a single act. Inasmuch as the People advanced factssupporting a view that defendant's driving was at a different time and place as to each victim,they satisfied their obligation to show that he endangered the flag people by separate, successiveand distinct acts for which consecutive sentences could be imposed (see People vRamirez, 89 NY2d 444, 451 [1996]; People v De Maio, 304 AD2d 988, 988 [2003]).Also unavailing is defendant's suggestion that he was misinformed by County Court's incorrectstatement of the range of years in prison that he could be sentenced if convicted after trial, for thecourt made that statement after, rather than before, he entered his guilty plea. Thus, CountyCourt's and counsel's references to potential consecutive sentences were not misleading anddefendant's plea was not thereby coerced.
Next, there is no merit in defendant's contention that County Court erred in imposing aconsecutive sentence for his aggravated unlicensed operation conviction. That charge and thereckless endangerment charges were based upon "separate and distinct acts involving differentkinds of conduct, as alleged in the separate counts of the indictment, even though they evolvedfrom the same operation of a motor vehicle" (People v Richburg, 287 AD2d 790, 792[2001], lv denied 97 NY2d 687 [2001]; see People v Brown, 80 NY2d 361, 364[1992]). Specifically, defendant was driving his vehicle on a public highway without a driver'slicense before he was stopped by police, and his subsequent flight through the construction zonewas a separate and distinct act.
Nor did County Court err in rejecting defendant's conclusory excuse for his violation of theParker warnings without first conducting a full evidentiary hearing (see People vOutley, 80 NY2d 702, 714 [1993]). The court noted that defendant had not appeared on twoprior occasions and afforded him an adequate opportunity to explain his absences. Defendantalleged only that treatment for psychological distress, apparently due to anxiety resulting from hisimpending sentencing, had prevented his appearance at one of the scheduled sentencing dates, yethe offered no specifics or documentation to support his claim.
Finally, defendant's challenge to the severity of his sentence is foreclosed by his waiver of theright to appeal and the record does not support his claim that his counsel was ineffective inadvising him to accept a plea agreement that satisfied additional charges and avoided consecutivesentences.[*4]
Peters and Kavanagh, JJ., concur.
Lahtinen, J. (dissenting). We respectfully dissent. We would reverse the judgment ofconviction, grant defendant's motion to withdraw the plea and remit for further proceedings onthe indictment. The plea agreement provided for defendant to receive the maximum sentence onthe top charges against him. He made a timely and detailed motion to withdraw his plea in whichhe asserted that he had made statements during the plea allocution that negated an essentialelement of the crime of reckless endangerment in the first degree, he had been coerced to acceptthe plea by the statement by County Court (LaBuda, J.) that he could receive consecutivesentences on all counts if convicted after a trial, and he was innocent of the depraved indifferenceconduct undergirding the crime of reckless endangerment in the first degree. The motion wasconsidered by a different judge than the one who took the plea,[FN1] and denied without a hearing. This appeal ensued.
"As defendant's challenge implicates the voluntariness of his plea, it survives his waiver ofappeal and it is preserved by his motion to withdraw his plea" (People v Wyant, 47 AD3d 1068,1069 [2008] [citations omitted]; see People v Pace, 284 AD2d 806, 806-807 [2001],lv denied 97 NY2d 686 [2001]). While there is no uniform catechism for taking a plea, ifdefendant said or failed to say something in his allocution that negated an element of the crime orotherwise called into doubt his guilt or the voluntariness of his plea, then County Court wasrequired to conduct further inquiry (seePeople v Seeber, 4 NY3d 780, 781 [2005]; People v Wyant, 47 AD3d at 1069;People v Ramirez, 42 AD3d671, 672 [2007]). The top two counts to which defendant pleaded include an element ofdepraved indifference. Approximately a month before defendant pleaded guilty to those counts,the Court of Appeals made clear that the element of "depraved indifference to human life is aculpable mental state" (People vFeingold, 7 NY3d 288, 294 [2006]) and implicitly overruled "those depravedindifference reckless endangerment cases that rest on the premise that depraved indifference ismeasured not by a culpable mental state but by an objective assessment of the risk involved"(id. at 294 n 2; see generallyPeople v Baptiste, 51 AD3d 184 [2008]).
The Court of Appeals instructed that even where a "defendant might well be said to haveacted with the mens rea of depraved indifference had the factfinder simply announced a guiltyverdict[,] . . . [w]hen a jury (or . . . the court at a bench trial) pointedlysays that [the] defendant was not depravedly indifferent, it is not our place to say that he was"(People v Feingold, 7 NY3d at 295). In other words, even where the defendant engages inconduct that would support an inference of the requisite mental state—as, for example,when "a large number of people were endangered" due to a defendant's actions(id.)—a conviction of depraved [*5]indifferencemurder cannot be upheld when the factfinder has expressly addressed the defendant's culpablemental state and pronounced the defendant to be innocent of "the core criminal element,depraved indifference" (id.). Thus, in Feingold, the Court reduced the defendant'sconviction of reckless endangerment in the first degree to reckless endangerment in the seconddegree when the factfinder indicated that the defendant "committed an extremely reckless andfoolish act not because of his lack of regard for the lives of others but because of his focus uponhis troubles and himself. While being reckless, the defendant's state of mind was not one ofextreme wickedness, or abject moral deficiency, or a mischievous disregard for the near certainconsequences of his irresponsible act" (id. [internal quotation marks omitted]), asrequired to establish a mens rea of depraved indifference.
Here, the plea allocution reveals significant doubt that defendant acted with the requisiteculpable mental state to commit reckless endangerment in the first degree. The allocutionprovided in relevant part:
"the court: And did you ignore the traffic directions and cause one of the constructionworkers to jump out of the way to avoid being hit by your car? . . .
"the defendant: I don't know if he jumped out, your honor. I know I went by.
"the court: Very close. You could have killed him if you hit him?
"the defendant: I don't think so. I don't know.
"the court: You didn't kill him, of course. But, you came so close that you created a situationthat was very dangerous.
"[defense counsel]: Your honor, we don't dispute the allegation. My client has no recollectionof particular individuals. But, we don't dispute the allegations and I have had an opportunity toreview the allegations, as well as the statement with my client, and we don't dispute the voracity[sic] of the situation."
County Court (LaBuda, J.) did not inquire whether defendant agreed with counsel's statementor otherwise seek clarification from defendant. Although we agree with the majority thatcounsel's comment could have been sufficient had this been a situation where defendant waspleading to a lesser or hypothetical crime (see People v Hadden, 158 AD2d 856, 857[1990], lv denied 76 NY2d 847 [1990] [cited by the majority]; see also People v Matthie, 34 AD3d987, 989-990 [2006], lvs denied 8 NY3d 805, 847 [2007]), defendant was pleadingto the top counts, he had just cast doubt on his culpability to those counts and, at a minimum, thecourt should have elicited from defendant a "positive confirmation of his lawyer's exposition"(People v Nixon, 21 NY2d 338, 350 [1967]).[FN2] In our view, regardless of whether the allocution revealed conduct that [*6]would permit an inference of depraved indifference (see People v Suarez, 6 NY3d 202,214 [2005]), defendant's answers negated (or at least cast serious doubt upon whether hepossessed) the necessary culpable mental state of depraved indifference when he drovehis vehicle through the construction zone. Contrary to the conclusion of the majority, defendantdid deny that he knew that he had actually endangered the workers' lives, stating, "I don'tthink so . . . I don't know," in response to the court's question regarding whether hecould have killed one of the workers. Inasmuch as the court's subsequent inquiry was notadequate to ensure that defendant understood the nature of the charge and intelligently enteredthe plea, we would vacate the plea and remit this matter on this ground alone.
While we agree with the majority that count 3 could have been imposed as a consecutivesentence to counts 1 and 2, there is merit to defendant's argument that the People failed to showon this record that consecutive sentences could have been properly imposed on counts 1 and 2 aswas stated to him by County Court (LaBuda, J.).[FN3] Review of the allegations in the indictment and the facts adduced at the allocution (see Peoplev Laureano, 87 NY2d 640, 644 [1996]) do not reveal the length of the construction zone orwhere the two flagmen were located. The affirmation in opposition to defendant's motion by theAssistant District Attorney (who does not claim to have personal knowledge of the constructionzone) gives no indication of the length of the zone. From this record, it is just as likely that theconstruction zone was 10 feet in length (or less) as it is that it was 10 miles (or more). ThePeople's burden of showing "the crimes involved two separate and distinct acts" was not satisfied(id.; see People v Rodriguez, 217 AD2d 403, 404 [1995], lv denied 87NY2d 850 [1995]; see generally Peoplev Rosas, 8 NY3d 493, 496 [2007]; cf. People v Kendrick, 261 AD2d 646[1999], lv denied 93 NY2d 1021 [1999]). Although receiving inaccurate informationregarding a possible sentence is not dispositive, it is a relevant factor in considering whether aplea was knowing, intelligent and voluntary (see People v Garcia, 92 NY2d 869, 870[1998]).
In summary regarding the plea, defendant asserted his innocence as to the alleged depravedindifference conduct, the Court of Appeals made clear in a decision shortly before the plea that amens rea element was required, defendant's allocution tended to undermine such element,defendant was provided inaccurate information as to his sentence exposure, he made a timely anddetailed motion to withdraw his plea, and the People—while opposing themotion—did not assert prejudice. We would hold, both as a matter of law as well as in theinterest of justice, that defendant should have been permitted to withdraw his guilty plea (seePeople v Leslie, 98 AD2d 977 [1983]; see also People v Derrick, 188 AD2d 486, 487[1992]; People v Paulk, 142 AD2d 754, 755 [1988], appeal dismissed 72 NY2d960 [1988]).[*7]
Finally, we would note that, even if the plea is permittedto stand, there was error in enhancing defendant's sentence without affording him a meaningfulopportunity to establish the plausible explanation offered for his initial failure to appear forsentencing. Enhancing a sentence without further inquiry is appropriate where a defendant failsto offer a plausible explanation for not adhering to Parker conditions (see People vCarpenter, 256 AD2d 1205 [1998], lv denied 93 NY2d 871 [1999]; see alsoPeople v Therrien, 301 AD2d 751, 752 [2003], lv denied 99 NY2d 633 [2003];People v Coleman, 270 AD2d 713, 714 [2000]). However, defendant's counsel stated atsentencing that defendant was not present at the original sentencing dates because he washospitalized with severe mental health issues. Counsel further requested that, if County Court(Ledina, J.) would not accept his statement in such regard, he be permitted to "put outsubpoenas" for the purpose of proving such fact. The court nevertheless proceeded to enhance thesentence without commenting upon or allowing development of the plausible excuse offered bydefendant.
Mercure, J.P., concurs. Ordered that the judgment is affirmed.
Footnote 1: It merits noting that thediscretion accorded trial judges in deciding motions to withdraw pleas is premised in part upon(unlike here) having presided over the plea and thus being "best able to determine whether a pleais entered voluntarily, knowingly and intelligently" (People v Alexander, 97 NY2d 482,485 [2002]).
Footnote 2: In his affidavit in support of hismotion to withdraw the plea, defendant indicated that his attorney made the statement withoutconsulting with him, that he did not agree with the statement, and that he was "attempting toassert my innocence, while in a vulnerable position."
Footnote 3: Indeed, County Court'sstatement that "you will wind up getting about 12 to 48" years is incorrect even accepting themajority's position that counts 1 and 2 could have been consecutive.