| People v Hollmond |
| 2019 NY Slip Op 02354 [170 AD3d 1193] |
| March 27, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tyron Hollmond, Appellant. |
Paul Skip Laisure, New York, NY (Lynn W. L. Fahey of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Danny K.Chun, J.), rendered December 3, 2014, convicting him of manslaughter in the first degree andattempted murder in the second degree (two counts), upon his plea of guilty, and imposingsentence. The appeal brings up for review the denial, without a hearing, of the defendant'sapplication pursuant to CPL 220.60 (3) to withdraw his plea of guilty.
Ordered that the matter is remitted to the Supreme Court, Kings County, for furtherproceedings, including a hearing, on the defendant's application to withdraw his plea of guilty,for which the defendant should be appointed new counsel, and thereafter a report to this Court asto the Supreme Court's findings with respect to whether the defendant has established hisentitlement to the withdrawal of his plea, and the appeal is held in abeyance pending receipt ofthe Supreme Court's report, which shall be filed with all convenient speed.
In order to be valid and enforceable, a plea of guilty must be entered knowingly, voluntarily,and intelligently (see People vBrown, 14 NY3d 113, 116 [2010]; People v Hill, 9 NY3d 189, 191 [2007]). A plea is voluntary only ifit represents an informed choice freely made by the defendant among other valid alternatives(see North Carolina v Alford, 400 US 25, 31 [1970]; People v Grant, 61 AD3d 177, 182 [2009]). When a defendantmoves to withdraw a plea, the nature and extent of the fact-finding inquiry "rest[s] largely in thediscretion of the Judge to whom the motion is made" and a hearing will be granted only in rareinstances (People v Tinsley, 35 NY2d 926, 927 [1974]). Where, however, the recordraises a legitimate question as to the voluntariness of the plea, an evidentiary hearing is required(see People v Brown, 14 NY3d at 116).
The defendant was charged with murder in the second degree, two counts of attemptedmurder in the second degree, and related offenses in connection with an April 22, 2012, shootingincident which resulted in the death of one person and injury to two other people. The defendantwas housed, pretrial, at Coxsackie Correctional Facility, which is approximately 132 miles northof the Kings County Supreme Court in Brooklyn. When the case was referred to a trial part onOctober 31, 2014, the defendant was moved to the Ulster Correctional Facility, which isapproximately 100 miles north of Brooklyn. Defense counsel sought to have his client moved toRikers Island, or another downstate facility, and argued that his client was being denied his basicconstitutional right to counsel by virtue of being housed in a remote location with limitedtelecommunication capabilities, rendering it impossible for defense counsel to consult, confer,and plan for trial with his client.
The Supreme Court ordered that the defendant be moved to Rikers Island, or at a minimum, acorrectional facility closer to the court. The court issued numerous orders over the following twoweeks directing that the defendant be moved, none of which was complied with. Eachappearance required the defendant to travel at least five hours each way. Defense counselcontinued to argue that the Department of Corrections and Community Supervision was violatingthe defendant's constitutional rights to consult with his attorney and to defend this case. The courtnoted that it would be nearly impossible to hold a jury and try the case under these conditions.The court nevertheless stated that the trial would commence, regardless of where the defendantwas housed. The very next court date, the defendant agreed to plead guilty.
Two weeks later, at the sentencing, the defendant made an application to withdraw his plea,contending that he had entered the plea involuntarily, given the circumstances and his lack ofaccess to his counsel. The Supreme Court denied the application without engaging in any inquiryof the defendant, other than to comment on the favorable plea offer secured by defensecounsel.
Under the circumstances, it cannot be said that the Supreme Court was able to make aninformed determination as to the question of the voluntary nature of the defendant's plea withoutconducting such an inquiry. The record substantiates the defendant's claim that his plea waseffectively coerced by the ongoing violation of his Sixth Amendment right to counsel and, thus, agenuine factual issue as to the voluntariness of the plea existed that could only be resolved after ahearing. Under these circumstances, the court should have conducted a hearing to explore thedefendant's allegations in order to make an informed determination (see People v Brown,14 NY3d at 118; People v Falls, 164AD3d 1361 [2018]; People vGhingoree, 150 AD3d 881 [2017]).
Accordingly, we remit the matter to the Supreme Court, Kings County, for furtherproceedings, including a hearing, on the defendant's application to withdraw his plea of guilty,for which the defendant should be appointed new counsel, and thereafter a report to this Court asto the Supreme Court's findings with respect to whether the defendant has established hisentitlement to the withdrawal of the plea. We hold the appeal in abeyance pending receipt of theSupreme Court's report. We express no opinion as to the merits of the defendant's application,and we decide no other issues at this time. Balkin, J.P., Chambers, Miller and Iannacci, JJ.,concur.