| People v Baret |
| 2007 NY Slip Op 06569 [43 AD3d 648] |
| September 6, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Roman Baret, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Dana Levin of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J., on motions; John E.H.Stackhouse, J., at plea and on motion to withdraw plea; Albert Lorenzo, J., at sentence), renderedDecember 20, 2004, convicting defendant of criminal sale of a controlled substance in the thirddegree, and sentencing him to a term of 2 to 6 years, affirmed.
The court properly denied defendant's motion to suppress identification testimony, without ahearing, since "as a matter of law, the identification at issue could not be the product of unduesuggestiveness" (People v Boyer, 6NY3d 427, 431 [2006]; see also People v Prekuli, 256 AD2d 77 [1998], lvdenied 93 NY2d 877 [1999]). An undercover officer made a series of purchases fromdefendant during the course of a long term operation under conditions that permitted him tofamiliarize himself with defendant's appearance, and identified him three days after the finalpurchase. Therefore, the identification was confirmatory, both under the theory set forth inPeople v Wharton (74 NY2d 921 [1989]) and that set forth in People v Rodriguez(79 NY2d 445 [1992]). The motion court expressly found that the same officer made all thepurchases, and we reject defendant's argument to the contrary.
We find no basis to disturb the motion court's finding that the search warrant was supportedby probable cause, or, given the information before the court, to disturb its denial of defendant'sapplication for disclosure of the warrant and the materials offered in its support.
The court properly denied defendant's motion to withdraw his plea after providing him with asuitable opportunity to be heard (see People v Frederick, 45 NY2d 520 [1978]), withoutordering a formal hearing. The minutes of the plea allocution establish that defendant's plea wasknowing, intelligent and voluntary. He acknowledged during the allocution that no one hadforced him to accept the plea offer, and that he was pleading guilty of his own free will. Theclaim raised in his motion to vacate his plea was too vague and unsubstantiated to contradict theaffirmative statements contained in that allocution (see People v Cosey, 286 AD2d 647[2001], lv denied 97 NY2d 655 [2001]). Even if his assertions are accepted as true, theyare insufficient to create bona fide grounds to demonstrate that his plea was involuntary.
Defendant asserted that his codefendant, Reynardo Nunez, had threatened him if he did notplead guilty in accordance with the "no-split" plea offer. Specifically, defendant stated in hisaffidavit in support of the motion to vacate the plea that Nunez told him he "better do the right[*2]thing and plead guilty" or Nunez would "make sure he did theright thing," and that he would "do what he had to do" if defendant did not plead guilty. Evenaccepting these assertions as true, they are insufficient to establish that he entered into the pleainvoluntarily. To vacate a guilty plea, the moving defendant must provide a factual basis for aconclusion that it was actually involuntary. A claimed vague threat does not satisfy thisrequirement. Enough specific factual assertions must be provided that, if proved, would justify afinding of nonvoluntariness. Absent information as to, for instance, the codefendant's ability tocarry out the veiled threat, or some other reason to justify a belief that the codefendant wouldhave the capability, means and inclination to harm him, defendant's assertions fail to make thetype of showing which would necessitate an evidentiary hearing on the issue of the voluntarinessof his plea. Concur—Tom, J.P., Saxe and Sullivan, JJ.
Marlow and Williams, JJ., dissent in a memorandum by Marlow, J., as follows: I would holdthis appeal in abeyance and remand for a hearing to determine whether defendant's plea wasvoluntary. Defendant made specific factual assertions to support the motion to withdraw his plea.I believe, under these particular circumstances, they require a hearing.
A Bronx County grand jury charged defendant with criminal sale of a controlled substance inthe third degree (six counts) and criminal possession of a controlled substance in the third degree(six counts). Codefendant Reynardo Nunez was charged with one count each of criminal sale of acontrolled substance in the third degree and criminal possession of a controlled substance in thethird degree. Both defendant and the codefendant were also charged with acting-in-concert tocommit the crimes of criminal possession of a controlled substance in the third degree (twocounts) and criminal possession of a controlled substance in the fourth degree.
The People offered defendant and the codefendant a "no-split plea" with a promised sentenceof 2 to 6 years' imprisonment and probation, respectively. In a "no-split" or "connected" plea, alldefendants must accept the respective plea offers or all must proceed to trial, with theaccompanying risks of enhanced punishment.
The court allocuted defendant and the codefendant at the same time and in each other'spresence. In an otherwise adequate allocution, defendant entered his guilty plea to one count ofcriminal sale of a controlled substance in the third degree. The court promised defendant asentence of 2 to 6 years, subject to certain conditions. Specifically, the court warned defendantthat, inter alia, if he failed to appear for sentencing, the court could impose the maximumsentence of 8
Thereafter, defendant moved, in writing, to withdraw his plea. The gravamen of his motionwas a challenge to the voluntariness of his plea based on his assertion that the codefendant, whowanted to take advantage of the prosecutor's offer of a nonjail sentence, had threatened him intopleading guilty. Defendant also claimed that he initially informed his attorney that he was notinterested in a guilty plea. Counsel advised him that if he did not plead guilty, his codefendantwould not be allowed to plead guilty and thus receive the promised sentence of probation.Defendant also averred that his codefendant approached him and "began to put pressure" on himto enter the plea so the codefendant would receive that favorable sentence. Had that alone beenthe sum and substance of defendant's showing, I would agree that [*3]defendant's conviction should be affirmed without remanding thematter for a hearing to inquire into the voluntariness of the guilty plea. However, defendantspecifically asserted that his codefendant told him he had "better do the right thing and pleadguilty or he would make sure he did the right thing." In addition, defendant claimed hiscodefendant repeatedly told him "his life was on the line and that he would do what he had to do"if defendant did not plead guilty. Defendant claims he feared "physical reprisal," felt "a great dealof pressure" at the plea hearing, and "under such pressure . . . agreed to pleadguilty." The People argued, and the court agreed, that the plea minutes did not supportdefendant's coercion claim.
The case was adjourned for sentencing. Defendant failed to appear and was returned to courton a warrant over six years later. Although defendant's plea provided for a greater sentence werehe to abscond, the court nevertheless imposed the sentence it had originally promised of 2 to 6years.
Defendant argues on appeal that the court erred in summarily denying his motion to vacatehis plea without ordering a hearing.
I agree.
Although the "no-split plea" arrangement defendant was offered is legal, that type of plea"can present concerns which require special care" in making an overall determination as to itsvoluntariness (People v Fiumefreddo, 82 NY2d 536, 545-546 [1993]). While I fullyrecognize and completely agree that defendant benefitted enormously from his plea, whicheliminated the possibility of significantly longer and consecutive sentences, and that he floutedthe justice system by absconding, neither of those facts is at the core of the issue on this appeal.Indeed, like King Midas, who regretted his wish that all he touched would turn to gold, defendantmay ultimately rue this challenge, especially if one considers (1) the abundance of compassionthe court showed when it did not enhance defendant's sentence after he absconded, and (2) thatthe court may hereafter decide to take that fact into account in the event defendant is convictedafter trial of a decidedly more serious combination of crimes.
Nonetheless, defendant did make specific factual assertions in his motion which warrant ahearing on the issue of coercion. True, the minutes of his guilty plea allocution on their face andviewed alone do not support defendant's contention. However, it would be highlylikely—or clearly not difficult to understand—that defendant, during his pleaallocution, was most reluctant to accuse his codefendant, who was then in his physical presenceduring the very proceeding in which defendant was pleading guilty, allegedly under the influenceof the codefendant's threats and coercion. Moreover, despite the People's contrary contention, itstands as unsurprising that the court was unable to observe any fear in defendant's demeanorduring the plea proceeding since defendant did not raise his present claims—nor wouldanyone be likely to do so—with his codefendant standing nearby and in a position to hearhim raise them. If true, these allegations portray a defendant whose free will was beclouded bythe coercive force of his codefendant's threats of future violence had defendant maintained hisnot guilty plea.
I respectfully disagree with the majority's position that defendant's specifically stated reasonsfor requesting permission to withdraw his plea are inadequate. First, the allegations arestatements of particular facts that may reasonably be interpreted, if proven true at a hearing, as apicture of a desperate codefendant who would not stop at acts of violence, to avoid going toprison. In my opinion, under all of the surrounding circumstances, that is the most reasonableinterpretation, should defendant be able to establish his factual claims at a hearing.
While I also recognize and fully appreciate the pressure on judges to move their dockets,[*4]defendant raised factual questions—not subject tosummary determination given the combination of (1) the particularized allegations he made; (2)the circumstantial setting of his plea allocution; and (3) and the specific type of plea offer at issuewith its attendant concerns—all of which could have been routinely resolved in a relativelybrief hearing.
I would also observe, and urge, that whenever a "no-split plea" arrangement is made, thecourt should endeavor to avoid creating the type of issue this appeal raises, and thus assure theplea's voluntariness by allocuting each defendant out of each other's presence and asking themeach one or two searching and precise questions to clarify that defendant is likely pleading guiltyfree from any undue pressure or any threats.