Conviction Overturned Where Trial Court Negotiated a Cooperation Agreement with a Co-Defendant

In New York, unlike other states and the federal system, trial judges and defendants may bypass the People and enter into plea negotiations directly. This is not uncommon. However, in People v. Towns (Ct. App. 5/7/2019), the Court of Appeals held that the trial court “abandoned the role of a neutral arbiter and assumed the function of an interested party” when it entered into a cooperation agreement with a co-defendant, which required that individual to testify against Towns in exchange for a more favorable sentence. The Court’s decision was unanimous, although Judge Rivera would have gone a step further and held that the trial judge showed actual bias.

The case was a simple, straightforward robbery, in which the issue was the identity of the perpetrators. The co-defendant implicated the defendant. His plea agreement with the judge called for a possible punishment of between 9 and 15 years; the judge, however, promised a sentence on the low end of the range if the co-defendant cooperated in the defendant’s case. At the defendant’s trial, the prosecution elicited that the co-defendant had not entered into a cooperation agreement with the district attorney’s office. The judge instructed the jury that the agreement was between the co-defendant and the court.

The Appellate Division criticized the trial court but upheld the conviction, finding that the court’s conduct did not deprive the defendant of a fair trial.

The Court of Appeals disagreed, analogizing to cases where judges made caustic remarks, called its own witnesses at trial, aggressively cross-examined witnesses, or acted as an appellate court in its own case. The focus, for the Court of Appeals, was the lack of neutrality that the judge showed. The Court was particularly troubled by the trial court’s statements tying its understanding of truthful testimony with the co-defendant’s prior statement:

Indeed, whatever its subjective intentions, the trial court effectively procured a witness in support of the prosecution by inducing the codefendant to testify concerning statements the codefendant made to police—which identified defendant as one of the robbers—in exchange for the promise of a more lenient sentence. Significantly, by tying its assessment of the truthfulness of the codefendant’s testimony to that individual’s prior statements to police, the trial court essentially directed the codefendant on how the codefendant must testify in order to receive the benefit of the bargain.

The case was remitted for trial before a different judge. (LC)

Defendant’s Refusal to Testify in Separate Prosecution Violated Cooperation Agreement, Even Though Agreement Did Not Expressly Require Such Testimony

In People v. Rodriguez (Ct. App. 4/2/19) (6-1), a majority of the Court of Appeals found that the defendant violated the terms of his cooperation agreement when he refused to testify in a separate, unrelated prosecution. Therefore, the Court affirmed the Appellate Division, Third Department’s decision and held that the County Court did not abuse its discretion by denying defendant’s motion to withdraw his guilty plea based on his claimed subjective misinterpretation of the agreement.

COA Orders a 440 Hearing – But Where is the Factual Dispute?

The Court of Appeals took the rare step of ordering a hearing on a defendant’s CPL § 440.10 motion. In People v. Brown (Ct. App. 5/2/2019) (6-1), the defendant and a co-defendant were found guilty of Depraved Indifference Murder and related charges. The defendant’s lawyer was hired to represent a third individual, who was present at the scene, on unrelated charges. The trial court was informed of the potential conflict of interest and conducted a Gomberg inquiry after appointing conflict counsel. The defendant waived any possible conflict of interest. The case proceeded to trial with the original attorney representing the defendant.

The defendant later apparently had a change of mind and brought a CPL § 440.10 motion, arguing he was deprived of effective assistance of counsel because his lawyer had a conflict of interest. Specifically, the defendant alleged that the third individual had actually paid the lawyer to represent the defendant. He stated that the conflict counsel only explained to him that his attorney would be prohibited from cross-examining the individual if he was called as a witness; the implications of the third individual paying for the attorney’s fees were not explained to him. However, the defendant had told the trial during the Gomberg inquiry that he or his family had hired the lawyer. There was no mention of the third individual doing so. The defendant did not provide an affidavit from his trial lawyer in connection with his 440 motion.

The Court of Appeals noted that there are two types of conflicts of interest: actual or potential, but that even some actual conflicts can be waived. Without identifying the factual issue in dispute, the Court said that the motion court erred in not holding a hearing:

On this record, we conclude that Supreme Court abused its discretion in determining that a hearing was not warranted to address the allegations contained in defendant’s CPL 440.10 motion regarding Chabrowe’s representation of defendant and whether any conflict of interest existed warranting reversal. 

Judge Stein, in dissent, pushed back. She noted that a motion court, in the first instance, must decide whether a 440 motion can be decided without a factual hearing. Quoting from People v. Chu-Joi, Judge Stein wrote, “[T]he court is not required to credit defendant’s evidence of fraud — particularly, his own, utterly unexplained, fraud on the trial court — that is self-serving and uncorroborated because the court does not have to accept every sworn allegation as true” (cleaned up). Here, the fraud upon the trial court was the defendant’s own statement during the Gomberg inquiry that he or his family had hired the attorney; there was no mention of the third individual doing so.

Ultimately, I am as perplexed as Judge Stein as to what factual issue the motion court is to decide. The defendant told the trial court that his lawyer was paid by him or his family and, in any event, he expressly waived any conflict of interest after consulting with conflict counsel. Where is the issue?

Underlying the majority’s decision may be justified annoyance in how the motion court handled the defendant’s CPL § 440.10 motion in the first instance. Quoting from the majority: “Supreme Court made no findings of fact or conclusions of law and denied the motion in a one sentence order, stating: ‘[d]efendant’s motion pursuant to CPL 440.10 is denied without a hearing for the reasons set forth at great length in the People’s opposing [papers].'” Appellate courts look with disfavor on trial court decisions that merely adopt one party’s briefs without further analysis. So perhaps what the Court of Appeals was looking for was some independent analysis and explanation of why the People’s position was correct. (LC)

Harmless Error Saves Conviction

In People v. Martin (Ct. App. 3/28/2019), the Court held that even if there was error in allowing the defendant’s statements into evidence under the pedigree exception to Miranda, it was harmless error and would not warrant reversal.

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)