| People v Wright |
| 2014 NY Slip Op 04976 [119 AD3d 972] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vTerrance J. Wright, Appellant. |
Norbert A. Higgins, Binghamton, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Broome County (Smith,J.), rendered September 12, 2012, convicting defendant upon his plea of guilty of thecrime of robbery in the second degree.
In April 2008, defendant was indicted on one count of robbery in the first degree forforcibly stealing money from a cab driver in the City of Binghamton, Broome County inFebruary 2008. He moved out of state and was not arraigned on the indictment untilDecember 2011. He then moved to dismiss the indictment based upon a violation of hisstatutory and constitutional rights to a speedy trial. During the pendency of the hearingson that motion and before any ruling was made, defendant accepted a plea agreement andentered a guilty plea to robbery in the second degree and waived all pending pretrialmotions, as well as his right to appeal. He was thereafter sentenced, as agreed, as asecond felony offender to a prison term of eight years, with five years of postreleasesupervision. He now appeals.
Defendant's primary contention on appeal is that his guilty plea must be vacatedbecause it was the product of coercion in that the plea agreement offered by the Peoplewas impermissibly conditioned on his waiver of his pending constitutional speedy trialmotion, which he argues was meritorious (see People v Blakley, 34 NY2d 311,313-315 [1974]; People v White, 32 NY2d 393, 399-400 [1973]; see also People v Alexander,19 NY3d 203, 205, 212-219 [2012]; People v [*2]Callahan, 80 NY2d 273, 278-279, 282 [1992];People v Seaberg, 74 NY2d 1, 9 [1989]). While the claims regarding the coerciveand involuntary nature of the plea survive his guilty plea and appeal waiver (seePeople v Seaberg, 74 NY2d at 9),[FN1]they were not raised in a postallocutionmotion to withdraw the plea (see CPL 220.60 [3]) but, rather, were raised for thefirst time on appeal.[FN2]As such, the People contend thatdefendant failed to preserve this claim for appellate review.
Generally, a claim that a guilty plea is invalid is not preserved for appellate reviewunless first raised in the trial court (see People v Lopez, 71 NY2d 662, 665[1988]; People v Jones, 114AD3d 1080, 1081 [2014]). Except as set forth below, this holds true for a claimedviolation of a defendant's constitutional right to a speedy trial (see People v Archie, 116AD3d 1165, 1165 [2014]). "Under certain circumstances, this preservationrequirement extends to challenges to the voluntariness of a guilty plea" (People v Peque, 22 NY3d168, 182 [2013] [citations omitted]; see People v Tyrell, 22 NY3d 359, 363-364 [2013]; People v Murray, 15 NY3d725, 726 [2010]; People vLouree, 8 NY3d 541, 546 [2007]). Notably, the Court of Appeals has recentlycited to People v Blakley (34 NY2d at 315) as an example of the "mode ofproceedings" exception to the preservation rule (People v Hanley, 20 NY3d 601, 604, 605 n 2 [2013]). Inthat case, the Court held that conditioning a plea on a waiver of a constitutional speedytrial claim is "inherently coercive" (People v Blakley, 34 NY2d at 313). Thenarrow mode of proceedings exception speaks to fundamental flaws that implicate"rights of a constitutional dimension that go to the very heart of the process" (Peoplev Hanley, 20 NY3d at 604 [internal quotation marks and citation omitted]; see People v Becoats, 17 NY3d643, 650-651 [2011]). Where, as in Blakley, the People condition a pleaoffer on the defendant's waiver of his or her constitutional speedy trial claim, theintegrity of the judicial process has been undermined (see People v Callahan, 80NY2d at 280; People v Seaberg, 74 NY2d at 9; People v Blakley, 34NY2d at 315; People v White, 32 NY2d at 400).
Here, the People expressly conditioned the plea offer on defendant's withdrawal ofhis constitutional speedy trial motion, while the hearing on this issue was still pending.To make matters worse, the offer was set to expire as soon as the hearing resumed(see People v White, 32 NY2d at 400). This is the type of prosecutorial barteringexpressly prohibited as "inherently coercive" in People v Blakley (34 NY2d at313). A trial court has a core obligation to recognize and prevent such an unfair tactic,but here the court simply reiterated the impermissible condition of the plea and waiver(compare People v Walston, 23 NY3d 986, 989-990 [2014]). Inasmuch as this case involves a "mode of proceedings error forwhich preservation is not required" (People v Tyrell, 22 NY3d at 364), we findthat defendant's claim that his plea was coerced is reviewable on direct appeal. Further,based upon the foregoing, we find merit in this claim and, therefore, conclude that theplea must be vacated.
[*3] We turn next todefendant's further claim that he was denied his constitutional right to a speedy trial andthat the indictment should, therefore, be dismissed. On the first day of the speedy trialhearing, the People presented testimony from the investigating officers as to efforts madeto identify and locate defendant prior to the indictment.[FN3]The matter was adjourned at defendant'srequest to assess whether he would testify. Prior to adjourning the proceeding, CountyCourt reminded the People that "if you want to call warrant witnesses, feel free to dothat. I've indicated I'd let you do that anyway." At the next appearance, defendant entereda plea of guilty without further testimony being presented. Accordingly, since the recordis insufficient to resolve the merits of defendant's constitutional speedy trial claim, thecase must be remitted to County Court for further proceedings on the motion (see People v Lee, 66 AD3d1116, 1121 [2009]).
Stein, J.P., McCarthy, Garry and Devine, JJ., concur. Ordered that the judgment isreversed, on the law, plea vacated, and matter remitted to the County Court of BroomeCounty for further proceedings not inconsistent with this Court's decision.
Footnote 1:By comparison,defendant's statutory speedy trial claim, also unpreserved, was forfeited by his guilty pleaand appeal waiver (see People vDevino, 110 AD3d 1146, 1147 [2013]).
Footnote 2:Since the conditionalplea/waiver is clear from the face of the record, defendant would not have been able tochallenge the plea in a CPL article 440 motion (see People v Louree, 8 NY3d 541, 546 n [2007]). A motionto withdraw the plea under CPL 220.60 (3), however, was certainly an available remedy.
Footnote 3:Although the People didnot explicitly state that they had rested, the dialogue between County Court and counselindicates a misunderstanding that only preindictment delay was at issue (see People vEdwards, 271 AD2d 812, 812 [2000]). Since the extensive delay here waspostindictment, the People bear the burden of demonstrating good cause for the delay (see People v Decker, 13 NY3d12, 14 [2009]; People vRomeo, 12 NY3d 51 [2009], cert denied 558 US 817 [2009]; Peoplev Vernace, 96 NY2d 886, 887 [2001]).