| People v Dixon |
| 2012 NY Slip Op 01526 [93 AD3d 894] |
| March 1, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Duane Dixon,Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Greene County (Lalor, J.),rendered February 23, 2010, convicting defendant upon his plea of guilty of the crime of burglaryin the first degree.
An identified individual and three masked men committed a home invasion, binding severaladults with duct tape, taking items from the house, hitting the victim with a gun and dragginghim outside. The situation ended when police arrived and the assailants fled. Defendant wascharged in a 26-count indictment for being a participant in this incident. He entered a plea ofguilty to one count of burglary in the first degree in satisfaction of all charges. The pleaagreement required him to admit his status as a second felony offender, waive his right to appealand agree not to testify at the trials of any of his codefendants, in exchange for the Peoplerecommending a sentence of 8½ years in prison and five years of postrelease supervision.His three codefendants pleaded guilty under the same terms. County Court denied defendant'smotion to withdraw his plea and sentenced him in accordance with the plea agreement.Defendant appeals.
The People and County Court did not deprive defendant of his right to a fair trial by enteringinto and approving of plea agreements with the codefendants. "[D]ue process may be [*2]violated when the prosecution's conduct deprives a defendant ofexculpatory testimony . . . [, but] such conduct is not a deprivation of a defendant'sright to call witnesses where the proposed evidence is not shown to be exculpatory" (People v Sharpe, 70 AD3d 1184,1186 [2010], lv denied 14 NY3d 892 [2010]; see People v Davis, 39 AD3d 873, 874 [2007], lv denied 9NY3d 842 [2007]; People v Warren,27 AD3d 496, 497-498 [2006], lv denied 7 NY3d 796 [2006]). Defendant nowcomplains of the People's conduct in conditioning each of his three codefendants' pleas on theirrefraining from testifying at trial for any of the codefendants. Defendant did not, however, raisethis complaint prior to entering his plea. At the plea proceedings, defendant admitted his guiltand made no statements asserting his innocence (compare People v Shapiro, 50 NY2d747, 757-758 [1980]). He raised this argument for the first time just prior to sentencing, at whichtime he stated that none of the witnesses had identified him and that he pleaded guilty becausethe court told one of his codefendants that he could not testify at defendant's trial. While theimplication was that the codefendant would testify in defendant's favor and say that defendantwas not one of the masked intruders, defendant did not explicitly state what the codefendant'stestimony would be or even identify which codefendant he was referring to. Nothing in therecord indicates that any of the codefendants would offer testimony that would exculpatedefendant, and even now defendant can only speculate as to what any codefendant's possibletestimony might be (compare People v Davis, 39 AD3d at 874, with People vTurner, 45 AD2d 749, 749-750 [1974]).[FN1]Defendant knowingly and intelligently pleaded guilty and admitted his participation in theburglary, and he failed to show that any codefendant would offer exculpatorytestimony.[FN2]Therefore, while we do not encourage the type of plea agreements fashioned by the People here,defendant's due process rights were not violated, and County Court did not err in denying hismotion to withdraw his plea (see Peoplev Phillips, 71 AD3d 1181, 1183 [2010], lvs denied 15 NY3d 755 [2010];People v Sharpe, 70 AD3d at 1186).
Defendant's valid waiver of appeal precludes any challenge to his sentence as harsh orexcessive (see People v Thomas, 71AD3d 1231, 1233 [2010], lv denied 14 NY3d 893 [2010]).
Rose, J.P., Malone Jr. and Stein, JJ., concur.
Egan Jr., J. (dissenting). Because I have serious reservations about a plea agreement thatprohibits one codefendant from giving testimony on behalf of another codefendant at trial, Irespectfully dissent.[*3]
"The right to offer the testimony of witnesses, and tocompel their attendance, if necessary, is in plain terms the right to present a defense, the right topresent the defendant's version of the facts as well as the prosecution's to the jury so it maydecide where the truth lies. Just as an accused has the right to confront the prosecution'switnesses for the purpose of challenging their testimony, he [or she] has the right to present his[or her] own witnesses to establish a defense. This right is a fundamental element of due processof law" (Washington v Texas, 388 US 14, 19 [1967]).
That said, "[t]he right to present a defense, and its concomitant right to compulsory process,[admittedly] are not unqualified" (Buie v Sullivan, 923 F2d 10, 11 [2d Cir 1990]), and Iacknowledge that where, as here, a criminal defendant contends that the prosecution has engagedin conduct that deprives him or her of the ability to call a particular witness to testify, the courtsof this state consistently have required the defendant to demonstrate that the sought-aftertestimony would have been exculpatory (see People v Sharpe, 70 AD3d 1184, 1186 [2010], lvdenied 14 NY3d 892 [2010]; Peoplev Davis, 39 AD3d 873, 874 [2007], lv denied 9 NY3d 842 [2007]; People v Warren, 27 AD3d 496,497-498 [2006], lv denied 7 NY3d 796 [2006]; but see People v Turner, 45AD2d 749, 749-750 [1974]; see also United States v Valenzuela-Bernal, 458 US 858,867 [1982] [requiring the defendant to make some plausible showing that the requestedtestimony would have been "material and favorable to his defense"]; Washington vTexas, 388 US at 23; Davis v Marshall, 2008 WL 5100302, *16, 2008 US DistLEXIS 98320, *47-48 [ED NY 2008]). On this point, the majority has concluded that "[n]othingin the record indicates that any of the codefendants would offer testimony that would exculpatedefendant." As this statement is technically correct, I reluctantly agree that the challenged pleacondition does not violate defendant's Sixth Amendment rights.[FN1]
Nonetheless, I have serious misgivings about the propriety of the plea agreements fashionedby the People here, which required defendant and his codefendants to, among other things,"agree[ ] not to provide any testimony on behalf of any co-defendants who may proceed totrial."[FN2]To be sure, "[p]lea bargaining is . . . a vital part of our criminal justice system"(People v [*4]Seaberg, 74 NY2d 1, 7 [1989]) and, for thatreason, a court will permit a defendant to forfeit otherwise guaranteed rights and allow thePeople to impose and enforce certain conditions upon the underlying plea—provided thoseconditions do not violate a constitutional or statutory right or otherwise offend public policy(see id.; People v Terrell, 41AD3d 1044, 1045 [2007]). Indeed, it is not uncommon for a plea agreement to contain aprovision requiring a defendant to cooperate with the People and provide testimony at a futureproceeding involving a codefendant. I discern no infirmity in such a condition because theresulting testimony (1) is subject to both a probing inquiry by the People and defense counsel anda credibility determination by the jury or trial judge and (2) bespeaks the truth. A court shouldnot, however, permit the People to secure a witness's silence in exchange for a favorable pleabargain,[FN3]nor should it condone a practice that effectively permits the plea process to "devolve into a gameto be won or lost whatever the means" (People v Shapiro, 50 NY2d 747, 762 [1980]). Asthe practice employed by the People here is—to my analysis—ripe for abuse,contrary to the notion of a voluntary plea agreement and, ultimately, violative of defendant's dueprocess rights, I would reverse and grant defendant's motion to withdraw his plea.[FN4]
Ordered that the judgment is affirmed.
Footnote 1: While the dissent notes thatsuch exculpatory information would not normally be revealed at plea proceedings, defendantcould have mentioned specific information at the sentencing proceeding when he raised thisissue.
Footnote 2: If defendant can now obtainexculpatory statements from one or more codefendants—or be rebuffed in an attempt toobtain such statements—he could possibly demonstrate that the People's plea agreementswith his codefendants operated to deprive him of his right to a fair trial. Based upon suchinformation, he could then seek relief pursuant to CPL article 440.
Footnote 1: I say "technically correct"because the record as a whole and—more to the point—the underlying pleaallocutions are silent on this issue, i.e., nowhere is there any discussion of the variouscodefendants' identities or involvement in the subject crime. The fact that no exculpatoryevidence was disclosed during the course of the plea proceedings does not strike me asparticularly unusual, however, as one hardly would have expected County Court to ask defendantand his codefendants—during the course of those proceedings—whether one ofthem might happen to be in possession of information that potentially could be helpful to theothers.
Footnote 2: In exchange, defendant and hiscodefendants would be permitted to plead guilty to one count of burglary in the first degree and,if all four codefendants agreed to the plea terms, the recommended term of imprisonment wouldbe 8½ years. If, however, any one of the codefendants did not agree to the terms of the plea,the recommended term of imprisonment would be 10 years.
Footnote 3: While that may not have beenwhat the People intended to accomplish, it nonetheless is the net result.
Footnote 4: As a final matter, althoughadmittedly not dispositive of the issues now before us, I question whether the plea agreementscrafted here are even enforceable. Should defendant have elected to proceed to trial, heabsolutely could have issued subpoenas to compel the appearance of his codefendants, and I donot believe that the People can—by inserting into a plea agreement a prohibition againsttestifying—insulate a witness from compliance with a judicial subpoena.