Category Archives: Constitutional Law

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)

Defendant’s Waiver of Grand Jury Indictment

Initially, under the New York Constitution, criminal defendants were unable to waive an indictment by Grand Jury. However, in 1974, the Constitution was amended to permit  waiver so long as a waiver is signed in open court in front of defendant’s counsel. Recently, the Court of Appeals affirmed this practice in People v. Myers (Ct. App. 6/27/2018) (Wilson, J.) (5-2).

Mr. Myers waived his right to an indictment by the Grand Jury and immediately after pleaded guilty to Burglary 3º. Prior to this, Mr. Myers had an opportunity to confer with his counsel off the record, and while the judge called the other cases on the calendar, he had an opportunity to meet with his attorney at the lectern about the waiver form. The judge then asked Mr. Myers’ counsel if he was ready, and when he said yes, the judge signed the order approving the waiver after determining it met the statutory requirements.

Mr. Myers argued that the indictment was invalid because there was no evidence the waiver was executed in open court and there was no conversation with the court on the subject. The Appellate Division upheld the waiver.

New York Constitution, article I, section 6 allows for waiver of a grand jury indictment if it is consented by the district attorney, and “evidenced by written instrument signed by the defendant in open court in the presence of his or her counsel.” In this case, the record shows that the waiver was signed in open court. Mr. Myers’ attorney notarized his signature on the waiver on the date of the court appearance.

The defendant’s argument that there was no inquiry by the court into whether his waiver was knowing and intelligent was unsupported by the New York Constitution, the Court held. Instead, the Court found that the requirements set forth in the statute (signed in open court, in the presence of counsel) were met. Thus, the Court declined to read into the statute the additional requirement of the judge conducting an oral inquiry on the record. The Court noted that “[c]ompliance with the constitutionally-specified waiver mechanism establishes the prima facie validity of the waiver of the right to prosecution by indictment.” There was no evidence on the record that the waiver was involuntary, unknowing, or unintelligent, so the prima facie showing was deemed by the Court to be conclusive.

Therefore, the Court affirmed the order of the Appellate Division but noted:

We emphasize, however, that the better practice—captured in the relevant model colloquy—is for courts to elicit defendants’ understanding of the significance of the right being waived, to minimize future challenges to the effectiveness of the waiver (see Waiver of Indictment; Superior Court Information Procedure & Colloquy, https://www.nycourts.gov/judges/cji/8-Colloquies/ [accessed June 22, 2018]).

Judge Rivera dissented because she believed that “[n]o waiver is valid without sufficient judicial inquiry.” (JC)

Sufficiently Related Crimes and Triggering the Indelible Right to Counsel

Under New York law, a defendant who is represented by counsel on a criminal matter may, under certain circumstances, be questioned by law enforcement about a different, unrepresented crime without violating a defendant’s right to counsel. In People v. Henry (Ct. App. 6/12/2018) (Wilson, J.) (7-0), the Court of Appeals, reversing the Appellate Division, held that police did not violate Mr. Henry’s right to counsel when they interrogated him about a murder charge for which he was not represented by counsel. (Full disclosure: counsel for the appellant in this case is an adjunct professor at St. John’s Law in our advocacy program.)

The case stemmed from a robbery at a tattoo parlor and a shooting at a gas station of a 19-year-old man in which the same getaway vehicle, a black Hyundai Sonata with dark tinted windows, was used at the scene of the crimes. Five days later, Mr. Henry, driving a black Hyundai Sonata with dark tinted windows, was pulled over for traffic infractions and arrested for marijuana possession. Mr. Henry was assigned counsel on the marijuana charges. Upon an inventory search of Mr. Henry’s vehicle, police found evidence in his car linking him to the robbery of the tattoo parlor. Three days after his release, Mr. Henry was again pulled over for traffic infractions, but this time was arrested and brought in for interrogation in connection to the robbery and murder. Mr. Henry was read his Miranda rights, which he waived, and subsequently admitted to being the driver of the vehicle involved in the robbery and murder. A grand jury returned an indictment charging Mr. Henry with multiple counts of Robbery 1º, CPW 2º, Criminal Possession of Stolen Property 5º, Murder 2º, and Criminal Possession of Marijuana 5º. Continue reading

Refusal to permit summations results in overturned verdict

In a bench trial, the court may not prohibit summations if the judgment will result in jail time.  Doing so is a violation of the Sixth Amendment’s right to counsel.  In People v. Harris (Ct. App. 6/26/2018) (7-0), the defendant was tried for a Class B misdemeanor with the court as trier of fact.  However, the judge announced at the close of the evidence that it would exercise its “prerogative” not to hear summations.  The court immediately rendered a verdict finding the defendant guilty of the charge and sentencing him to 90 days in jail.

First, the Court of Appeals held that the claim was reviewable on appeal even though no objection was taken to the court’s ruling.  The manner in which the trial judge proceeded “deprived defense counsel of a practical ability to timely and meaningfully object to the court’s ruling of law.”  Thus, the Appellate Term erred in holding that the claim was unpreserved.

On the merits, the Court held that the failure to permit summations deprived the defendant of his Sixth Amendment right to counsel, since his attorney was not able to be heard.  New York’s former CPL § 320.20(3)(c), which gave trial courts the discretion not hear summations on nonjury indictments, was ruled unconstitutional in Herring v. New York, 422 U.S. 853 (1975).

The Court’s ruling in Harris came with two important caveats:

Our analysis is limited to the facts in this case and we do not address the constitutionality of the statute as applied to other nonjury trials that may not involve a deprivation of liberty. Similarly, defendant never argued that the denial of an opportunity to deliver summations violated his statutory right to counsel (see CPL 170.10).

Overall, Harris is a straightforward case with clear implications for future cases. (LC)

Summary affirmance of reversal on 4th Amendment grounds

Yesterday, the Court of Appeals summarily affirmed the Appellate Division's reversal of the conviction in People v. Williams (Ct. App. 9/13/2011).  The intermediate appellate court had found that the Defendant was arrested without probable.  Although the Court of Appeals noted that "different conclusions may not have been unreasonable," there was nevertheless evidence in the record to support the Appellate Division's decision.  That foreclosed further review by the Court of Appeals, since probable cause is a mixed question of law and fact. (LC)