| People v Powell |
| 2008 NY Slip Op 07693 [55 AD3d 632] |
| October 7, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v NathanPowell, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley, Peter A. Weinstein, andJudith R. Sternberg of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (DeRiggi, J.),rendered August 18, 2003, convicting him of manslaughter in the first degree, upon his plea of guilty,and imposing sentence.
Ordered that the judgment is modified, on the law and the facts, by vacating the sentence imposed;as so modified, the judgment is affirmed, and the matter is remitted to the County Court, NassauCounty, for a hearing and determination on the issue of whether the defendant violated a condition ofhis plea agreement that he be truthful with the Department of Probation, and for resentencing thereafter.
The defendant's contention that the Justice who presided at his plea proceedings and sentencingshould have recused himself is without merit. Since no basis for disqualification pursuant to JudiciaryLaw § 14 was present, it was within the discretion of the Justice to decide whether or not torecuse himself (see People v Witherspoon,48 AD3d 599 [2008]; People vRolle, 37 AD3d 624 [2007]), and based upon the record before us, we conclude that theJustice did not improvidently decline to recuse himself.
However, we modify the judgment of conviction to vacate the sentence imposed because the courtfailed to conduct a sufficient inquiry pursuant to People v Hicks (98 NY2d 185 [2002]), beforeimposing an enhanced sentence upon the defendant, based on the finding that the defendant violated[*2]the condition of his plea agreement that he be truthful with theDepartment of Probation.
During the plea proceedings, defense counsel stated that the defendant had agreed to plead guiltyto manslaughter in the first degree, in that he intended to cause the death of the victim, and did cause hisdeath under circumstances which did not constitute murder because he acted under extreme emotionaldistress. The defendant allocuted to the crime, admitting that he killed the victim by striking him with apool cue and stabbing him, and that he intended to cause his death. Immediately after his allocution thecourt explicitly advised the defendant that if he failed to cooperate with the Department of Probation, orgave untruthful answers to the Department of Probation's questions, the court could impose anenhanced sentence, and the defendant stated that he understood.
The defendant told the Department of Probation that on the night of the crime, he and the victimhad a disagreement and the victim threatened the defendant's family. He said that he and the victimscuffled and then the victim came straight for him with a machete he had taken off the wall. He statedthat he hit the victim repeatedly with a pool cue which had been on the floor, then grabbed a kitchenknife and stabbed the victim in the back. Then he cut off the victim's head and put it in a freezer, and cutoff his limbs and put them into moving boxes. The defendant told the Department of Probation that thecharge always should have been manslaughter and that he did not know how he was indicted formurder. He said that he accepted the plea bargain because he could not get a fair trial before theJustice, who was biased against his attorney.
On the date that the defendant was to be sentenced, the People reiterated that they wererequesting the imposition of the agreed-upon sentence of 20 years. The defendant read a lengthystatement into the record, in which he stated that he "never committed a crime, including that night," andthat the victim had threatened him and his family. The defendant also repeated his claim that he wantedto go to trial but could not get a fair trial before the Justice. The Justice adjourned the sentencing fortwo weeks, informing the defendant that he intended to order the minutes of the plea proceeding toconsider whether to enhance the defendant's sentence, based upon his statements to the Department ofProbation.
On the adjourned date, the Justice reiterated that he was considering enhancing the defendant'ssentence, based on "[t]he fact that he pled guilty to [the court] and stated at that time that he intended tokill the individual in violation of the law, and told probation that it was a justified killing." Defensecounsel's request for a hearing on the issue was denied. After hearing argument from the defense, thecourt imposed the enhanced sentence of 25 years' imprisonment, based upon the defendant's untruthfulstatements to the Department of Probation.
A court may enhance a defendant's sentence for breach of the condition that he truthfully answer allof the questions asked of him by the Department of Probation (see People v Hicks, 98 NY2d185 [2002]). However, in the instant case, the court failed to conduct sufficient inquiry to conclude thatthe defendant breached the condition of the plea agreement that he answer the Department ofProbation's questions truthfully, in accordance with the requirements of due process (see People vHicks, 98 NY2d 185 [2002]; People v Outley, 80 NY2d 702 [1993]; People v Green, 45 AD3d 780 [2007];cf. People v Butler, 49 AD3d 894[2008]). We note that the probation report itself does not state that the defendant was untruthful or thatthe defendant denied culpability for the crime. While the court's interpretation of the defendant'sstatements to the Department of Probation indicating that he considered his acts on the night of thecrime to have been justified was not unreasonable, the defendant ought to have been given an [*3]opportunity to present evidence that his statements to the Department ofProbation did not contradict his statements to the court during the plea proceedings. Thus, it was errorto deny the defense request for a hearing on the issue, and the matter must be remitted to the CountyCourt, Nassau County, for a hearing and determination regarding the defendant's truthfulness with theDepartment of Probation, and for resentencing thereafter.
The defendant's valid waiver of his right to appeal precludes review of the contentions raised inpoint V of his main brief and points III, VI, and VII of his supplemental pro se brief. The remainingcontentions, raised in the defendant's main brief and in his supplemental pro se brief, are without merit.Mastro, J.P., Lifson, Carni and Eng, JJ., concur.