| People v Rhodes |
| 2009 NY Slip Op 03924 [62 AD3d 815] |
| May 12, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michelle Rhodes, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Cristin N. Connell of counsel; MatthewC. Frankel and Rachel Weissman on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Peck, J.),rendered April 9, 2008, convicting her of criminal possession of a controlled substance in thefourth degree, upon her plea of guilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, the plea is vacated, and the matter isremitted to the County Court, Nassau County, for further proceedings on the indictment.
The defendant allegedly participated in a drug sale in Hempstead on March 7, 2007, and shewas arrested later that month. The felony complaint, and the laboratory report, indicated that theweight of the drugs was one two hundredth (0.005) of an ounce. Subsequently, the defendantwas charged, by indictment, with criminal sale of a controlled substance in the third degree(see Penal Law § 220.39 [1]), criminal possession of a controlled substance in thethird degree (see Penal Law § 220.16 [1]), and criminal possession of a controlledsubstance in the seventh degree (see Penal Law § 220.03). In January 2008, thedefendant agreed to plead guilty to criminal sale of a controlled substance in the fourth degree, aclass C felony (see Penal Law § 220.34 [1]), in full satisfaction of the indictment.During the allocution, however, the defendant, who was not asked if defense counsel hadexplained possible defenses to her, gave an account of the crime that raised the possibility of anagency defense (see People v Lam Lek Chong, 45 NY2d 64, 74 [1978], certdenied 439 US 935 [1978]; People v Sierra, 45 NY2d 56, 58-59 [1978]). Althoughthe court did not explain the import of this account to the defendant, or ask defense counsel toexplain it, the court proposed that the plea be [*2]taken instead tocriminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1]), also a class C felony. The remaining terms of the plea were to be unchanged. Theprosecutor and defense counsel agreed to the change, but no one noted or explained to thedefendant that the substituted charge contained as an element that the weight of the drugs be atleast one eighth of an ounce.
Before sentencing, the defendant moved to withdraw her plea, arguing that agency would bea defense to the counts charging criminal sale of a controlled substance and criminal possessionof a controlled substance in the third degree (see People v Lam Lek Chong, 45 NY2d at74; People v Sierra, 45 NY2d at 58-59) and that the substituted charge was refuted by thelaboratory report. The court denied the motion.
To be valid, a plea of guilty must be knowing, voluntary, and intelligent (see People vFiumefreddo, 82 NY2d 536, 543 [1993]), and it is the "constitutional duty" of a trial court toensure that a guilty plea satisfy this requirement (People v Catu, 4 NY3d 242, 244 [2005]). Here, despite theallocution that clearly implicated an agency defense, the defendant was not advised that she hada possible defense to the felony charges in the indictment and the charge to which she originallyagreed to plead guilty (see People vOrtega, 53 AD3d 696, 696-697 [2008]; People v Wolcott, 27 AD3d 774, 775 [2006]). Further, the courtnever asked the defendant whether she had discussed possible defenses with her attorney (cf. People v Phillips, 28 AD3d939, 940 [2006]). Thus, there is no indication that the defendant was made aware of thatpossible defense and affirmatively waived it (see People v Castro, 175 AD2d 953[1991]). Instead, the court, in effect, precluded that defense to the felony charges in theindictment and the charge to which the defendant pleaded guilty by substituting a different crimefor which agency could not be a defense. Moreover, the substituted crime was one which wasaffirmatively refuted by the record and which could not have been submitted to a jury in thiscase. All of this was done without any explanation to the defendant by the court or defensecounsel. Under the circumstances, the defendant's plea of guilty was not knowing, voluntary, andintelligent, and the court should have granted the defendant's timely motion to withdraw her plea.Fisher, J.P., Miller, Chambers and Austin, JJ., concur.