| People v Alexander |
| 2011 NY Slip Op 02444 [82 AD3d 619] |
| March 29, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v HansAlexander, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Thomas R. Villecco of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Dineen A. Riviezzo, J., at plea; Edward M.Davidowitz, J., at plea withdrawal hearing and sentence), rendered October 24, 2008, convictingdefendant, on his guilty plea, of criminal sale of a controlled substance in the fifth degree andsentencing him, as a second felony offender, to a term of 1½ years, affirmed.
By indictment dated November 29, 2006, defendant was charged with criminal sale of acontrolled substance in the third degree and criminal sale of a controlled substance in or nearschool grounds. By motion dated December 28, 2007, defendant moved pro se to dismiss theindictment, asserting, among other things, that the 13-month-and-five-day delay resulted in adenial of his right to a speedy trial "as guaranteed by section 30.30 (1) (a) of the criminalprocedure law and the sixth amendment of the United States constitution." Defendant also filed awrit of habeas corpus with this Court, asserting that the indictment was improper because of theprosecutor's failure to charge the grand jury on the defense of agency.
At a January 11, 2008 appearance, the court advised the parties, who were ready for trial, thatit had just learned that this Court had granted defendant's writ [to the extent of transferring it toBronx County for resolution] and that the trial would have to be adjourned to March to allow thePeople to respond. After numerous pauses and consultation with counsel, defendant pleadedguilty to a lesser charge, conditioned on the withdrawal of all outstanding writs and motions andthe waiver of his right to appeal. Defendant also executed a written waiver of appeal whichexpressly reserved several fundamental rights, including his right to appeal "any constitutionalspeedy trial claim which [he] may have advanced."
On January 17, 2008, defendant moved pro se to withdraw his guilty plea on several grounds,including that counsel was ineffective because he failed to inform him that the writ had beengranted and that the plea was inherently coercive because it was conditioned on the withdrawalof his speedy trial claim. After conducting a hearing, at which defendant and counsel testifiedand the grand jury minutes, which showed that an agency charge had been given, were admittedinto evidence, the court denied the motion. In finding that defendant had knowingly, intelligently,and voluntarily pleaded guilty, the court noted that defendant's motions and writs demonstratedhis understanding of the process and that there were serious inconsistencies [*2]between defendant's testimony and the plea minutes, whichestablished defendant's knowledge that the writ had been granted and that the plea wasconditioned on its withdrawal. The court also stated that it is "perfectly proper" for a court torequire that writs and motions be withdrawn before taking a plea.
Defendant now seeks to vacate his guilty plea on the ground that it was unlawfullyconditioned on the withdrawal of his constitutional speedy trial motion in violation of the rule setforth in People v Blakley (34 NY2d 311 [1974]) and reaffirmed in People vCallahan (80 NY2d 273, 279-282 [1992]). For the reasons set forth below, we find that thiscase does not fall within the ambit of Blakley and Callahan and that theconviction should be affirmed.
Our analysis begins with People v White (32 NY2d 393 [1973]). In White,the defendant moved to dismiss his indictment on the ground that his right to a speedy trial hadbeen denied by a 51-month delay. Before the motion was decided, defendant agreed to pleadguilty to a lesser charge. Employing a case specific analysis, the Court of Appeals, characterizingthe prosecutor's conduct as "unfair and over-reaching," found the defendant's waiver of hisconstitutional speedy trial claim invalid because the prosecutor used coercion and duress toobtain the waiver and the defendant's guilty plea on a lesser crime. (Id. at 400.) Incontrast, an analysis of the record before us establishes that defendant's plea, including his waiverof all pending motions and writs, was not coerced in any manner.
First, the plea minutes indicate that even though the speedy trial motion remainedoutstanding, both defendant and the People were ready for trial on the date of the plea (seegenerally People v Rodriguez, 50 NY2d 553, 557 [1980] ["the constitutional right to aspeedy trial is one that may be surrendered"]).
Second, after the court informed the parties that the case would have to be adjourned to allowthe People to respond to the writ, it was defense counsel who advised the court that defendanthad asked him "to make further inquiry" regarding the People's offer. In response, it was thecourt, not the prosecutor, that informed defendant that it would accept the plea only on thecondition that defendant withdraw "all motions that are outstanding."
Third, when defense counsel first advised the court that defendant was not interested in theplea offer because he would not be immediately released, the court set an adjourned date andneither the court nor the prosecutor said anything designed to persuade defendant to change hismind and accept the plea offer. It was only after numerous pauses in the proceeding that defensecounsel advised the court that, "after having had a number of conversations with [defendant] and. . . an opportunity to review the writs . . . as well as the motions,"defendant had authorized him to enter a plea of guilty with the understanding that defendantwould be receiving credit for time served and would waive his right to appeal and withdraw theoutstanding writs or motions which counsel had adopted in the past.
Fourth, during the plea proceedings the court twice asked defendant if he understood that bytaking the plea all of his outstanding writs and motions were being withdrawn. Defendantacknowledged that he understood and was withdrawing all prior writs and motions and that hehad been given enough time to discuss the disposition with counsel and was satisfied with hisrepresentation. Defendant also confirmed that he understood that he was waiving certain trialrights and that he was pleading guilty because he was in fact guilty, that no one had forced him toplead guilty and that the only promise made to him was the sentencing promise.
Indeed, at the plea withdrawal hearing, defendant explained that he inquired into the plea[*3]offer because he felt pressure as a result of the delay thatwould result from allowing the People to respond to his writ. Although defendant testified that hewas not made to understand that the writ had been granted and that he would not have pleadedguilty had he known that the court was requiring him to withdraw it, he admitted that heunderstood that the withdrawal of all motions encompassed his pending motion asserting aviolation of his "constitutional right to a speedy trial." At no time did defendant testify that hewas concerned about the withdrawal of his speedy trial motion. Rather, he complained only thathe did not know that a plea could not be conditioned on the withdrawal of certain motions.
Given these circumstances, the court properly exercised its discretion in denying defendant'smotion to vacate the plea on the ground that it was knowingly, intelligently and voluntarilyentered (People v Flemming, 27AD3d 257 [2006], lv denied 7 NY3d 755 [2006]).
We are cognizant that in Blakley and Callahan, the Court of Appeals wentbeyond White's case-specific analysis, holding in Blakley that "[b]ecause thecriminal justice system should scrupulously avoid the possibility that a plea of guilty may betainted by unfairness . . . , and because prosecutors should not be allowed tosubmerge speedy trial challenges, and the societal interests they represent, in plea bargains,. . . a reduced plea conditioned upon a waiver of a speedy trial claim must bevacated" (Blakley, 34 NY2d at 315; see also Callahan, 80 NY2d at 279-282).However, in Blakley and Callahan the right to appeal the constitutional speedytrial claim had matured in that the defendants had pleaded guilty after their speedy trial motionshad been denied. Here, as in White, the appellate claim had not matured in that thespeedy trial motion remained pending when the plea was entered.
Defendant argues that this distinction is irrelevant in that the Blakley rule has notbeen limited to those cases where the motion has been decided and that while a defendant canindependently choose to abandon a speedy trial claim by his silence, a plea that is specificallyconditioned on the withdrawal of a speedy trial claim is illegal per se. This argument isunpersuasive.
In Blakley, the court denied defendant's speedy trial motion even though his case didnot come to trial until almost three years and one month after the indictment. On the second dayof the trial, defendant pleaded guilty to a reduced plea, which the prosecutor conditioned upondefendant's withdrawal of his speedy trial claim. In considering defendant's challenge to the plea,the Court of Appeals stated: "The improper denial of a motion to dismiss the indictmenton the grounds that the defendant has not been afforded a speedy trial survives a plea of guiltyand may be raised on appeal. Here the prosecutor attempted, in effect, to deprive thedefendant of his right to appeal the adverse determination of his speedy trial claim, byconfronting him with a possibly unfair trial (because so tardy) on the one hand, and, on the other,offering him a reduced plea only if he would relinquish the speedy trial claim." (Blakley,34 NY2d at 314 [citations omitted and emphasis added].)
Although Blakley held that a waiver of appeal is ineffective to the extent that itprecludes appellate review of constitutional speedy trial claims and that such claims survive aguilty plea following the denial of a speedy trial motion, it is equally established that aproperly interposed constitutional claim may be deemed abandoned or waived if not pursued(see Rodriguez, 50 NY2d at 557; see also People v Denis, 276 AD2d 237,246-247 [2000], lv denied 96 NY2d 782[*4][2001]).Thus, in Flemming (27 AD3d257 [2006]) and People v Tatis-Duran (300 AD2d 84 [2002]), this Court held that adefendant who pleaded guilty before the court decided his constitutional speedy trialmotion was foreclosed from pursuing the merits of his constitutional speedy trial claim onappeal.
In light of these principles, to accept defendant's interpretation and vacate his guilty pleawould create the paradoxical result of allowing defendant to vacate his plea solely because thecourt, rather than remaining silent, advised him that all pending motions had to be withdrawn asa condition of his plea, even though defendant is barred from pursuing the merits of his speedytrial motion in this Court.[FN*]Indeed, taken to extremes, a per se interpretation of the Blakley rule might have absurdconsequences. For example, as interpreted by defendant, Blakley would require vacaturof a guilty plea conditioned on the withdrawal of a speedy trial motion even in a situation wherea defendant filed the motion the day after his indictment and then pleaded guilty the followingday.
Lastly, defendant ignores the factual distinctions between Blakley and this case. InBlakley, it was the prosecutor who "attempted, in effect, to deprive the defendant of hisright to appeal the adverse determination of his speedy trial claim" (Blakley at 314), bygiving him the choice of accepting a plea conditioned on the waiver of his speedy trial claim orproceeding to a trial that would be rendered unfair by the three-year delay. Here, the allegeddelay was approximately 13 months, defendant was ready to proceed to trial on the plea datedespite the pendency of his speedy trial motion, defendant raised the plea offer only because hefelt pressured by the fact the trial was going to be further delayed due to his writ, and, in responseto defendant's inquiry about the plea, it was an impartial judge who raised the condition thatdefendant waive all pending motions and ensured that defendant understood and agreed to all ofthe terms of the plea offer (see Ocasio v Walker, 2004 WL 1516789, *5, 2004 US DistLEXIS 12500, *15-17 [SD NY 2004]). Concur—Andrias, J.P., Moskowitz, Freedman andRomÁn, JJ.
McGuire, J., concurs in a separate memorandum as follows: A central issue in this appeal iswhether People v White (32 NY2d 393 [1973]) remains good law in light of People vBlakley (34 NY2d 311 [1974]) and People v Callahan (80 NY2d 273 [1992]).Although that issue is not one that commonly turns up, it is one the Court of Appeals shouldaddress.
In People v Blakley, the defendant pleaded guilty to a reduced charge after his motionto [*5]dismiss on constitutional speedy trial grounds had beendenied. The Court vacated the plea, concluding that "[f]or a variety of reasons, a prosecutor mustnot make the right to a speedy trial an item of barter in a plea bargaining situation" (34 NY2d at314). The Court viewed conditioning a plea to a reduced charge on the withdrawal of aconstitutional speedy trial claim as "inherently coercive" (id. at 313); its broad rationalewas: "It is possible that an innocent defendant, faced with a trial that is unfair becauseunreasonably delayed, may plead guilty to a reduced charge rather than risk such a trial. Becausethe criminal justice system should scrupulously avoid the possibility that a plea of guilty may betainted by unfairness . . . , and because prosecutors should not be allowed tosubmerge speedy trial challenges, and the societal interests they represent, in plea bargains, wehold that a reduced plea conditioned upon a waiver of a speedy trial claim must be vacated. (Cf.People v. White, 32 NY2d 393.) And this result follows regardless of the defendant'ssuccess on the underlying speedy trial claim" (id. at 315). Of course, this case isdistinguishable on its facts as the court had not ruled on the merits of the speedy trial motionwhen defendant pleaded guilty. The issue in this case is whether defendant's plea to a reducedcharge is for that reason not subject to the per se vacatur holding of Blakley. Notably, inadopting the per se vacatur rule, the Court cited only its decision the year before in People vWhite, and prefaced the citation with the signal, "cf."
People v White does not expressly address that issue. In White, thedefendant's motion to dismiss on constitutional speedy trial grounds had not been decided priorto his plea of guilty to a reduced charge. Critically, however, the Court did not, as it later didin Blakley, vacate the plea before determining whether it had been coerced. Although theCourt held that the defendant had been coerced into waiving his right to a speedy trial andpleading guilty, the case seems to turn on its particular facts. After all, the coercive character ofthose facts is stressed in the opinion and no broad rationale is stated (see also Callahan,80 NY2d at 282 [noting "White's case-specific analysis"]). Nor is there any reliance onthe societal interest in a speedy trial, one of the factors informing the Court's decision inBlakley. To the contrary, the opinion states a broad principle of law—"[a]defendant may, of course, waive his right to a speedy trial" (32 NY2d at 399)—that, as isclear from People v Seaberg (74 NY2d 1, 9 [1989]), is no longer valid in some contexts.Consistent with the fact-specific analysis in White, the majority stresses the noncoercivecharacter of the circumstances surrounding defendant's guilty plea.
People v Rodriguez (50 NY2d 553 [1980]), another case in which the trial court didnot rule on the merits of a motion to dismiss on constitutional speedy trial grounds, is not a guiltyplea case but is relevant nonetheless if only because it is discussed in People v Callahan.The trial court directed a hearing on the motion, but "[f]or reasons undisclosed by the record, nospeedy trial hearing was held" (50 NY2d at 556). Although the motion remained undecided, theparties proceeded to trial and the defendant was convicted. On appeal, he sought to press hisclaim that his right to a speedy trial had been violated. Concluding that the record "figurativelyshouts out the knowing nature of the decision to abandon the speedy trial claim" (id. at557), the Court held that the defendant's "objection to the tardiness of the prosecution. . . had been knowingly and voluntarily abandoned" (id. at 558).[*6]
In People v Callahan, as in Blakley, thedefendant pleaded guilty after the court had denied his motion to dismiss on constitutionalspeedy trial grounds (80 NY2d at 278). Presumably, he pleaded guilty to a reduced charge, butthe opinion states only that he pleaded guilty to a charge in full satisfaction of the indictment(id.). Brushing aside the notion that Rodriguez undermined the continuingvalidity of Blakley, the Court reaffirmed Blakley, stating that it "went beyondWhite's case-specific analysis and held that 'the nature of the speedy trial guaranteerenders a [waiver of such a claim] inherently coercive in a plea bargaining situation,' sothat a plea conditioned on a waiver 'must be vacated' regardless of the substantive merits of theclaim (id. at 282, quoting Blakley, 34 NY2d at 313). Invoking anew the societalinterest in a speedy trial, the Court stated that Blakley's continuing validity was evidentfrom Seaberg, where that interest was stressed (id.). The Court also went on tomake clear that Rodriguez should not be interpreted broadly, stating that "Rodriguezstands only for the limited proposition that a defendant who initially interposes aconstitutional speedy trial claim but subsequently abandons it before a determination on theclaim is made cannot subsequently raise that claim on appeal" (80 NY2d at 282).[FN*]
Defendant argues that although his constitutional speedy trial motion had not been deniedprior to his guilty plea, the per se vacatur rule of Blakley applies, not the case-specificapproach of White, because White was supplanted, i.e., overruled, byBlakley. Neither in Blakley nor in Callahan, however, did the Court statethat it was overruling White or disapproving its case-specific analysis. To the contrary,when the Court in Blakley cited White, it used the "cf." rather than the"but see" signal. And the statement in Callahan that Blakley "wentbeyond" White's case-specific approach would be too coy and too casual a way ofoverruling a precedent.
That said, why the case-specific approach of White should apply when aconstitutional speedy trial motion has been made but not decided is not obvious. It cannot besaid, however, that the factual situation in this case and White always must be asinherently coercive as the situation in Blakley. Where, as here, the prosecution has notresponded to the speedy trial motion, the prosecutor responsible for the case may not even haveread it. Of course, that will not invariably be true and, even when it is, the prosecutor still mayhave good reason to think the motion is a formidable one. The point, however, is that when casesin which the motion has been responded to are compared to cases in which there has been noresponse, it is not unreasonable to [*7]think that the latter class ofcases presents a reduced danger that the offer of a plea to a reduced charge represents a coerciveeffort by the prosecutor to "make the right to a speedy trial an item of barter" (Blakley, 34NY2d at 314). Moreover, there is a good reason to be chary about extending the per se vacaturrule of Blakley. Plea bargaining, of course, benefits both persons charged with crimes andsocietal interests (People v Selikoff, 35 NY2d 227, 232-234 [1974], cert denied419 US 1122 [1975]). However, those benefits do not come without costs. If the per se vacaturrule of Blakley applies as soon as a constitutional speedy trial motion is made,prosecutors will have powerful incentives not to permit any reduced pleas until after the motionis decided, even if the motion is frivolous or the prosecutor had been planning to offer afavorable plea bargain before the motion was made. After all, the defendant would have theunilateral right to undo any plea of guilty, perhaps years later when the prosecution's case couldbe compromised, by filing an appeal or making a post-conviction motion and invoking thevacatur rule.
Defendant argues that extending the per se vacatur rule to this case would not require"vacat[ur] of all pleas, even those entered into voluntarily very early in a criminal case, wherethere was a pending constitutional speedy trial motion at the time of the guilty plea." The"critical" consideration in this case, he maintains, is that his plea to a reduced charge was"specifically conditioned on the withdrawal of his speedy trial claim." This argument isunpersuasive because it entails the proposition that an otherwise identically situated defendant isnot entitled to vacatur of a guilty plea or any other relief if no one, not the court, the prosecutor ordefense counsel, makes any mention of a pending constitutional speedy trial motion. In thatsituation, the speedy trial claim would be waived by operation of law and the defendant would beentitled to no relief. A different result should not obtain merely because of on-the-record effortsby the court, the prosecutor or defense counsel to confirm or make clear to the defendant that theplea of guilty effectively waives the undecided constitutional speedy trial motion.
For these reasons, I agree with the majority that the case-specific analysis of White isapplicable and that, because of the noncoercive circumstances of the plea, defendant is notentitled to vacatur of the plea.
Footnote *: Of course, if there was a basis tohold that defendant's speedy trial claim was reviewable even though the motion was not decided,as the Court of Appeals did in White, this case would not run afoul of Blakleyand Callahan because defendant, in his written waiver of appeal, expressly reserved hisright to appeal "any constitutional speedy trial claim which [he] may have advanced." In thisregard, we note that defendant has not asked that we consider the merits of his constitutionalspeedy trial claim.
Footnote *: The Court did not mention theper se vacatur rule of Blakley, pursuant to which the guilty plea is vacated and then themerits of the constitutional speedy trial claim are reviewed. But there is no inconsistency withBlakley in this regard; the record on appeal makes clear that the defendant did not askthat the plea be vacated (brief for defendant-appellant at 7, 12; People v Callahan, 80NY2d 273 [1992]). In People v Flemming (27 AD3d 257 [2006]) and People vTatis-Duran (300 AD2d 84 [2002]) we held that a defendant who pleaded guilty to a reducedcharge before his constitutional speedy trial claim was decided could not obtain review of thatclaim. In Flemming, vacatur of the guilty plea was not sought and in Tatis-Duranthere was no claim that the plea was involuntary (brief for defendant-appellant Flemming at 22;brief for defendant-appellant Tatis-Duran at unnumbered page 4).