Judges Must Exercise Sound Discretion Before Proceeding With a Trial In Absentia

In People v. Palmer (App. Term 2d Dept. 4/4/2019) and a similar case, People v. Lobato, the Second Appellate Term held that a trial court’s failure to make a record of the Parker factors before proceeding to trial in absentia constituted reversible error.  Both cases arose from the Justice Court of the Town of Greenburgh in Westchester County.  The Town Attorney did not file briefs in the cases.

In Palmer, the defendant was charged with driving to the left of pavement markings and failure to signal. After pleading not guilty and demanding trial, the defendant signed a Parker admonishment which informed her, among other things, that if she failed to appear in court, the trial would proceed in her absence. Seven months later on the date of trial, the defendant failed to appear and the trial proceeded in her absence. She was convicted and the court imposed sentence.

Similarly, in Lobato, Defendant was charged with failing to obey a traffic-control device. In February 2017, the defendant signed a Parker admonishment and the matter was adjourned to October 2017 for trial. On that date, when the defendant failed to appear, the Justice Court stated on the record that “it will proceed with the inquest” prior to holding trial where the defendant was subsequently convicted.

One of the most fundamental rights guaranteed by both the Federal and State Constitutions is the right for a defendant to be present at their trial. Although a defendant may waive this right after being properly advised, trial in absentia is not automatically authorized. Instead, a court must inquire into the surrounding circumstances to determine if the defendant’s absence is deliberate and to recite on the record the factors it considered. Factors to consider are: the possibility that defendant could be located within a reasonable period of time, the difficulty of rescheduling the trial and the chance that evidence will be lost or witnesses will disappear.

In both these cases, the trial court failed to state on the record whether it considered any of these factors prior to proceeding to trial. This failure as the Court says, constitutes reversible error and thus, both defendants’ convictions were reversed.  (MK/LC)

Criminal Contempt Conviction Upheld Even Without Order of Protection in Evidence

In People v. Simpson (App. Term 2d Dept. 11/29/2018), the defendant was charged with Stalking 4° for incidents that had occurred in 2011 and 2012 involving the girlfriend (the victim) of defendant’s husband. Defendant was also charged with Criminal Contempt 2° based on an incident that had occurred in October 2013, in which defendant had allegedly violated an order of protection in favor of the victim and against the defendant. After a jury trial, the defendant was convicted of Criminal Contempt 2°. The Appellate Term, Second Department, affirmed the defendant’s conviction, but the decision drew a dissent from Justice Brands.

At trial, the victim testified that in October 2013, she had been sitting in her car on the phone when the defendant approached her vehicle and asked the victim questions regarding her relationship with the defendant’s husband. The defendant then allegedly threatened the victim, telling her that “she would pay.” The victim filed a report with the police shortly after. After the People rested their case-in-chief, defense counsel unsuccessfully moved for a trial order of dismissal on the Stalking charge but also stated on the record that they could not in good-faith move to dismiss the Criminal Contempt 2º charge. Prior to summations, both parties stipulated that there was a valid order of protection in favor of the victim against the defendant at the time of the alleged incident. But a copy of the order of protection was not produced. Defendant was acquitted of the Stalking charge but convicted of Criminal Contempt 2°.

On appeal, Defendant contended that the People did not prove her guilty beyond a reasonable doubt of Criminal Contempt 2º because they failed to introduce into evidence the order of protection, and there was otherwise no proof of the conduct that it prohibited. The Court declined to review this, stating that Defendant’s claim was unpreserved when she failed to move to dismiss the charge at trial. Defendant also claimed on appeal the denial of effective assistance of counsel. Here, the Court held that the defendant was not denied effective assistance of counsel because defense counsel had extensively cross-examined the victim and brought out credibility issues that the jury took into account as well as getting an acquittal on the stalking charge.

Justice Brands would have reversed the conviction and ordered a new trial. As to the defendant’s first claim, Justice Brands agreed with the defendant’s contention that the People’s evidence was insufficient for a conviction on the criminal contempt charge. Even though it was stipulated into the record that there was a valid order of protection in place, the actual contents of the order of protection, namely delineating the type of order of protection and the conduct the defendant must refrain from doing, were not entered into the record. Without the contents of the order of protection, Justice Brands reasoned that there was no proof Defendant violated any of its terms. Because defense counsel did not move to dismiss the Criminal Contempt charge in the absence of an order of protection in evidence, Justice Brands stated that this alone would be enough to grant Defendant relief for ineffective assistance of counsel. Justice Brands stated that this case represents a “rare occasion” in which a single misstep by defense counsel can rise to the level of ineffective assistance. (MK/LC)

Sufficiently Pleading an Unauthorized Use of a Vehicle Charge

For a misdemeanor complaint to be facially sufficient, the accusatory instrument must provide facts that would establish each element of the crimes being charged. In People v. Bajas (App. Term 2d Dept. 8/31/2018), the Court affirmed the defendant’s conviction,  holding that the allegations in the accusatory instrument sufficiently alleged facts that established the “control or use of [a] vehicle” element of Penal Law § 165.05(1). The case drew a dissent from Judge Weston.

The defendant was arrested after an officer observed the defendant, at 4:24 AM, pull the handle of a 2006 Ford Suburban, enter the vehicle, and rummage through the glove compartment and center console of the Ford Suburban. The defendant was arrested and charged with Unauthorized Use of a Vehicle in the 3°, Attempted Petit Larceny, and Resisting Arrest. During his second court appearance, the defendant pleaded guilty to Unauthorized Use of a Vehicle in the 3° with the understanding that if he successfully completed a drug treatment program, the case would be dismissed. If he was unsuccessful in treatment, the defendant would be sentenced to one year of incarceration to run concurrently with a sentence on a prior, unrelated, felony charge. The defendant did not complete the drug treatment program and was sentenced to imprisonment.

On appeal, defendant contends that his conviction should be reversed because the factual part of the accusatory instrument, which merely alleged that he had entered a vehicle and rummaged through the glove compartment and the center console, did not satisfy the reasonable cause requirement for a misdemeanor complaint charging Unauthorized Use of a Vehicle in the Third degree. A person is guilty of Unauthorized Use of a Vehicle in the 3° when:

[k]nowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle. A person who engages in any such conduct without the consent of the owner is presumed to know that he does not have such consent.

The broad language of the statute has been interpreted to apply to a person who “enters an automobile without permission and takes actions that interfere with or are detrimental to the owner’s possession or use of the vehicle.” Entry into a vehicle alone is not enough; there must be some degree of control or use. The court relied on this reasoning for holding that the defendant’s rummaging through the car and center console satisfied the statute.

Judge Weston, on the other hand, would have reversed the judgment, vacated the guilty plea, and dismissed the accusatory instrument. In her dissent, Judge Weston pointed to the majority’s reliance on the Court of Appeals decision in People v. Franov. Franov dealt with an entry into a vehicle where the defendant vandalized and then removed certain automotive parts from the dashboard. Judge Weston believed that merely rummaging through a vehicle does not constitute vandalism, and since there was no allegation in the accusatory instrument of any further action on the part of defendant, in addition to the entry, the statute was not satisfied. Instead, Judge Weston would have the Court follow the same rationale as a similar previously decided case, People v. Gavrilov. This case held that the defendant’s entry into a vehicle and stealing a wallet from inside was not enough to constitute “use or control” of the vehicle for the purposes of the statute. Here, there was not even property taken (MK/LC.

Speedy Proceedings Leading to Involuntary Plea Deals?

It is well established that trial courts have the responsibility of ensuring that a defendant who pleads guilty is doing so knowingly, voluntarily, and making an intelligent choice among alternative courses of action. However, this does not require courts, at the time of the defendant’s guilty plea, to ask defendants an established set of questions to ensure that the guilty plea is entered into knowingly and voluntarily. In People v. Cappiello (App. Term 2d Dept. 2018) the Appellate Term, Second Department, upheld the defendant’s guilty plea as having been entered into knowingly, voluntarily, and intelligently and that the defendant understood the consequences of her plea.

During the defendant’s arraignment, the prosecutor made the court aware that there was a plea agreement in place in which the defendant would plead guilty to one count of Petit Larceny (Penal Law § 155.25) and would serve a 20 day sentence. In response, defense counsel stated that he had spoken with the defendant, and after advising her of her rights and the offer from the D.A., she had advised him to enter a plea of guilty with the understanding that she would only serve 20 days in jail. Defense counsel then waived a formal allocution.

This case drew a dissent from Judge Weston in which he voted to reverse the judgment of conviction, vacate the defendant’s guilty plea, and dismiss the accusatory instrument in the interest of justice. Quoting the arraignment transcript, Judge Weston took issue with the lack of dialogue between the court and the defendant when she was entering her guilty plea. Unlike other cases where a judge may ask the defendant a series of questions regarding the guilty plea, here, the defendant had no interaction with the court. As Judge Weston pointed out, the only proof that defendant waived her rights was her counsel’s general statement that he had “advis[ed] her of her rights,” which was not made in response to any court inquiry. This lack of on the record evidence calls into question whether or not the defendant truly knew the consequences of her guilty plea.

While Judge Weston understood the policy behind judges needing to keep arraignments moving quickly in the interest of judicial economy, he stated that a court still has the responsibility to ensure that a defendant enters a voluntary and knowing guilty plea.  (MK/LC)

Padilla held retroactive

In People v. Nunez (2d App. Term 12/15/2010), the defendant plead guilty to Criminal Possession of a Controlled Substance 7° in 1997.  Over a decade later, the defendant moved to vacate his judgment on the ground of ineffective assistance of counsel. Specifically, he argued: (1) his attorney provided him with incorrect advice regarding the immigration consequences of pleading guilty; and (2) his attorney had a conflict of interest because he was employed by the same firm previously representing a person arrested with defendant on an unrelated matter. 

In Padilla v. Kentucky, the U.S. Supreme Court held that the Strickland ineffective assistance analysis requires attorneys to inform their clients of immigration consequences resulting from a guilty plea.   Deportation is an integral part of the penalty potentially applying to noncitizens pleading guilty to specified crimes, rendering the accuracy of legal advice critical. 

According to the Appellate Term, Padilla involved an application of well-established “old” rules (ineffective assistance of counsel) to a new set of facts (deportation consequences). “Old” rules are distinguished from “new” rules as new rules render results not dictated by precedent existing at the time the defendant’s conviction became final. Cases involving old rules applied to new factual circumstances are given retroactive effect. The court concluded that Padilla should therefore be applied retroactively. 

The case was reversed and remanded for a factual hearing to determine if, in fact, the defense attorney provided the Defendant with proper immigration advice in connection with the criminal plea.  There was no basis for a hearing on the conflict of interest claim, however. (RB/LC)