| People v Fitzgerald |
| 2008 NY Slip Op 08360 [56 AD3d 811] |
| November 6, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v LewisFitzgerald, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Kane, J. Appeal from the judgment of the County Court of Franklin County (Main, Jr., J.),rendered September 18, 2006, convicting defendant upon his plea of guilty of the crime ofcriminal contempt in the first degree.
Defendant, who had been directed by an order of protection to stay away from the victim,entered her apartment where he allegedly struck her and ripped off her shirt. He was indicted oncharges of criminal contempt in the first degree, criminal mischief in the fourth degree, assault inthe third degree and criminal trespass in the second degree. He subsequently pleaded guilty tocriminal contempt in the first degree in satisfaction of all charges. Prior to sentencing, he retainednew counsel and moved to withdraw his plea. After hearing oral argument, County Court denieddefendant's motion and sentenced him to a prison term of 1¾ to 3½ years. Defendantappeals.
Defendant's argument that the plea was involuntary survives the waiver of appeal and waspreserved by his motion to withdraw the plea (see People v McCann, 289 AD2d 703, 703[2001]; People v Pace, 284 AD2d 806, 806-807 [2001], lv denied 97 NY2d 686[2001]). Much of defendant's argument regarding voluntariness is premised upon the purportedineffective assistance of his former counsel, which also survives the waiver under thesecircumstances (see People v De Berardinis, 304 AD2d 914, 915 [2003], lv denied100 NY2d 580 [2003]). "Trial [*2]judges are vested withdiscretion in deciding plea withdrawal motions because they are best able to determine whether aplea is entered voluntarily, knowingly and intelligently" (People v Alexander, 97 NY2d482, 485 [2002]), and it is well recognized that "a guilty plea generally 'marks the end of acriminal case [and is] not a gateway to further litigation' " (id., quoting People vTaylor, 65 NY2d 1, 5 [1985]). Initially, we note that defendant unequivocally answered eachof County Court's many questions regarding his willingness to accept the plea and theconsequences thereof, and he freely acknowledged committing the crime to which he waspleading guilty (see People v Ellis,43 AD3d 485, 486-487 [2007], lv denied 9 NY3d 961 [2007]; People v Bowman, 34 AD3d 935,937 [2006], lv denied 8 NY3d 844 [2007]).
Turning to some of defendant's specific assertions regarding his former counsel's conduct,defendant urges that his attorney did not spend ample time discussing the case with him. Yetdefendant answered affirmatively during the plea colloquy to County Court's inquiry as towhether he had a sufficient opportunity to consult his attorney. His contention that he was undulypressured by his attorney to accept the plea is contradicted by his answer to County Court that noone had coerced him to accept the plea. Review of the record fails to establish that defendantreceived less than meaningful representation (see People v Masters, 36 AD3d 959, 960 [2007], lv denied8 NY3d 925 [2007]; People vWashington, 3 AD3d 741, 743 [2004], lv denied 2 NY3d 747 [2004]).
We do, however, find that defendant is entitled to a hearing to address the narrow issue ofwhether his plea was involuntary because his attorney allegedly provided him with erroneousinformation concerning his potential sentence exposure. In moving to withdraw his plea,defendant averred that counsel erroneously advised him that he faced 10 years in prison ifconvicted of all charged counts, but faced only 2 to 4 years if he pleaded guilty in accordancewith the plea offer. Defendant further avers that he is innocent, but pleaded guilty solely to avoidthe potential 10-year sentence. Counsel submitted an affidavit, on behalf of the People, flatlycontradicting defendant's allegations. This created a factual question, albeit one mainly hingingon credibility, which should have been decided after a hearing.
The record discloses that although County Court explained the sentencing options todefendant, the court only discussed its options on the plea. The court did not inform defendant ofhis sentence exposure if he had taken the matter to trial on all charges. While it is true thatmisinformation or incorrect advice about the maximum sentence is not necessarily dispositive, itwould be a factor for the court to consider on defendant's motion (see People v Garcia, 92NY2d 869, 870 [1998]; People vSmith, 49 AD3d 1032, 1033 [2008], lv denied 10 NY3d 939 [2008]; Peoplev Jackson, 278 AD2d 875 [2000], lv denied 96 NY2d 759 [2001]; comparePeople v Norman, 220 AD2d 537, 537 [1995]; People v Goldfadden, 145 AD2d 959,960 [1988]). Such misinformation may have greater significance here, where defendant pleadedto the highest count, the court made no sentencing commitment and defendant promptly movedto withdraw his plea prior to sentencing. Under these circumstances, a hearing should be held todetermine whether defense counsel misinformed defendant as to his maximum sentencingexposure on the indictment and, if so, whether this misinformation led defendant to plead guiltywhen he otherwise would not have done so.
The dissent's reliance on People v Ramos (63 NY2d 640 [1984]) is misplaced. Whilethe Court of Appeals in that case denied the defendant a hearing on his allegation of receivingerroneous sentencing advice, the implication is that the trial court, at the time of his plea, asked[*3]the defendant if any other promises were made to him, and hedenied any such promises. He therefore had an opportunity to place that misinformation on therecord at the time of his plea. In the present case, despite the thoroughness of the plea colloquy,there was no occasion for defendant to mention the advice he had received concerning themaximum possible sentence had he gone to trial on charges which were being dismissed as partof his plea bargain. This factual difference renders Ramos inapplicable here.
If defendant's plea was voluntary, we need only address one further argument. Although theterms of defendant's waiver of appeal specifically permitted a challenge to his sentence, thesentence was not harsh or excessive. In light of the nature of defendant's conduct, his prior recordand the fact that he received less than the maximum permissible sentence (and no fine wasimposed), we find neither an abuse of discretion nor extraordinary circumstances meriting areduction of the sentence (see People vBrooks-Singh, 47 AD3d 1120, 1121 [2008]; People v Spear, 37 AD3d 870, 871 [2007]). The remainingarguments have been considered and found meritless.
Spain, J.P., Malone Jr. and Stein, JJ., concur.
Lahtinen, J. (dissenting). I respectfully dissent from that part of the majority decisiondirecting a hearing regarding the off-the-record discussion that defendant allegedly had with hisattorney about sentence exposure.
"The nature and extent of the fact-finding procedures prerequisite to the disposition of [amotion to withdraw a guilty plea] rest largely in the discretion of the Judge to whom the motionis made" and "[o]nly in the rare instance will a defendant be entitled to an evidentiary hearing"(People v Tinsley, 35 NY2d 926, 927 [1974]; see People v Lewis, 46 NY2d 825,826 [1978]; People v De Gaspard, 170 AD2d 835, 837 [1991], lv denied 77NY2d 994 [1991]). "As a general rule, '[a]bsent a showing that defendant's plea is baseless, theJudge to whom the motion is addressed must be entitled to rely on the record to ascertain whetherany promises, representations, implications and the like were made to the defendant' and inducedhis plea of guilty" (People v Ramos, 63 NY2d 640, 642 [1984], quoting People vFrederick, 45 NY2d 520, 525 [1978]). In People v Ramos (63 NY2d at 642), thedefense attorney acknowledged providing off-the-record "erroneous sentencing advice" (an issuethat defendant's former attorney in the case currently before us strongly denied in a swornstatement submitted to County Court), but the Court of Appeals nevertheless held inRamos that "[i]nasmuch as defense counsel's misadvice concerning the [sentencing] wasnot placed on the record at the time of the plea, it is not entitled to judicial recognition"(id. at 643).
Here, the plea colloquy was thorough. Defendant (who was no stranger to the criminal justicesystem) acknowledged that he knowingly violated an order of protection by striking, shoving andkicking the victim. At no time during the plea did he equivocate or otherwise cast any doubt onhis culpability for the crime to which he pleaded (see People v Seeber, 4 NY3d 780, 781-782 [2005]; cf. People vLeslie, 98 AD2d 977 [1983]). The same judge who took defendant's plea heard defendant'smotion to withdraw the plea. On the return date of the motion to withdraw the plea, defendantwas present with his new attorney, who argued extensively that the motion should be grantedbased upon the submitted papers and he made no request to have [*4]defendant testify or present any further proof at an evidentiaryhearing. As held by the majority, defendant's arguments in his motion about ample time, unduepressure and ineffective assistance were all belied by the record. The record, of course, could notdispositively reveal what occurred in the purported off-the-record discussion between defendantand his former attorney regarding sentence exposure. Nevertheless, in light of the clear allocutionadmitting guilt and there being nothing indicating that the plea was baseless, I am unpersuadedthat this is one of those rare instances in which the failure to conduct an evidentiary hearingconstituted an abuse of discretion. I would therefore affirm defendant's judgment of conviction. Ordered that the decision is withheld, and matterremitted to the County Court of Franklin County for further proceedings not inconsistent withthis Court's decision.