Opinion
2003-1782 Q CR NO. 2003-1782 Q CR
Decided June 24, 2005.
Appeal by defendant from a judgment of the Criminal Court, Queens County (P. Mullings, J. — at plea; S. Knopf, J. — at sentence), rendered November 3, 2003, upon his plea of guilty, convicting him of disorderly conduct (Penal Law § 240.20) and imposing sentence.
Judgment of conviction affirmed.
Before: PRESENT: PESCE, P.J., RIOS and BELEN, JJ.
In October 2003, defendant was charged with assault in the third degree (Penal Law § 120.00), menacing in the third degree (Penal Law § 120.15) and harassment in the second degree (Penal Law § 240.26), upon the complainant's allegation that he repeatedly kicked and slapped her about the face and body. In November 2003, defendant disposed of these charges by pleading guilty to one count of disorderly conduct (Penal Law § 240.20) and was sentenced to a conditional discharge. On appeal, defendant contends that his plea was not knowingly and voluntarily made, and makes numerous statements which are dehors the record. Inasmuch as defendant failed to move to withdraw his plea or vacate the judgment of conviction in the court below ( see generally CPL 220.60, 440.10), the judgment of conviction is affirmed ( see People v. Johnson, 82 NY2d 683).
Pesce, P.J., and Rios, J., concur.
Belen, J., concurs in a separate memorandum.
Appellant was arrested and a complaint filed against him charging him with assault in the third degree, menacing in the third degree and harassment in the second degree, based upon his allegedly kicking and slapping his wife, and slamming a kitchen knife on the table while threatening to kill her.
Mr. Yu was arrested from his home on the evening of October 28, 2003. On October 29, 2003, he was arraigned in Criminal Court. At this arraignment, bail was set at $1,500.00 and an order of protection was issued barring the defendant from returning to the marital apartment. The record is unclear as to when Mr. Yu made bail, however, he alleges he was jailed for a few days in lieu of bail.
He appeared in court again on November 3, 2003 with a public defender from Queens Law Associates and a Mandarin interpreter provided by the court. The record shows that the first statement the nisi prius judge made to Mr. Yu was that since he made the $1,500.00, bail "a very good argument could be made that defendant could be hiring his own lawyer. . . . I am going to order that defendant should hire his own lawyer. He apparently has resources that the court does not know about. . . ." No inquiry was made of Mr. Yu regarding the source of his bail money or of his general financial condition either before or after this statement was made by the court.
The Assistant District Attorney then made an offer, on the record, of a plea to disorderly conduct with a sentence of a conditional discharge and a full order of protection. The court inquired of counsel whether his client was interested in taking the plea "rather than hiring a lawyer to fight the charges."
It appears that at first Mr. Yu did not want to take the offer (his lawyer responds "no disposition"). There is no indication on the record as to whether there was any discussion between Mr. Yu and his attorney at that juncture. The judge then advised Mr. Yu that he could finish the case that day or exercise his right to fight the charges by hiring a lawyer to do so. At that point, the defendant states "I plea[d] guilty."
Defendant waived allocution and at no point were the charges to which he was initially accused (assault in the third degree, menacing in the third degree and harassment in the second degree) made clear to him before he pleaded guilty. Nor was the disorderly conduct that he pleaded to described. By this waiver of allocution, counsel waived the court inquiry that may have ensured that Mr. Yu fully understood what he was pleading guilty to and the ramifications of the plea ( Unger v. Cohen, 718 F Supp 185 [SD NY 1989]).
The court advised Mr. Yu that he was going to sentence him to a full order of protection, but nowhere in the record is there any indication that the significance of this order was explained to Mr. Yu before he pleaded guilty, specifically, the fact that he would not be able to return to his home for a full year. Only after Mr. Yu took the plea did the court explain that he would not be allowed to have contact with his wife and, therefore, be locked out of his home for a year, and that he would have to go to Family Court to arrange to see his child.
In his appeal to this court, Mr. Yu alleges that he was never advised of the charges to which he pleaded guilty and that he did not really comprehend what was going on due to hearing difficulties, stress, lack of sleep, and a language barrier.
All of these claims are unfortunately dehors the record, as there is virtually no record. Counsel for Mr. Yu said nothing and allocution was waived by counsel.
As the Court of Appeals stated in Peple v. Catu ( 4 NY3d 242, 244-245):
"'A trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences' ( Ford, 86 NY2d at 402-403 [citations omitted]). Although the court is not required to engage in any particular litany when allocuting the defendant, 'due process requires that the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant' ( id. at 403 [citations and internal quotation marks omitted])."
In People v. Nixon ( 21 NY2d 338), a series of cases involving vacating pleas, the Court of Appeals discussed the necessity of an inquiry of the defendant upon sentencing. The court stated:
"From the cases discussed some conclusions can be derived. The primary one is that it is highly doubtful that a uniform mandatory catechism of pleading defendants should be required. . . . The circumstances are too various. There are knowledgeable and criminally experienced defendants and there are those who are lacking in intellect or experience, or both. . . . The competency of counsel and the degree of actual participation by counsel, as well as his opportunity for and the fact of consultation with the pleading defendant, are particularly important. . . ." ( id. at 353-354)
Mr. Yu was not an experienced defendant. He had no criminal record and there is no reason to believe he had ever been in court prior to this incident. In addition, Mr. Yu's English and his hearing may not have been adequate to the proceedings and there is no indication that his attorney took the time to explain to him in detail what his rights were, what the charges against him were, or what alternatives were available to him other than taking the plea at that moment.
In Catu ( 4 NY3d 242, supra), a plea was stricken because the sentencing court failed to advise the defendant that he would be subject to post release supervision. Although the appellant was only pleading guilty to a violation, rather than a felony as in Catu, the same constitutional principles apply. Due process rights do not disappear merely because a defendant may be obtaining a non-criminal disposition with no further jail time.
It is axiomatic that there is value to the administration of justice in moving cases quickly, particularly violations where there is no particular benefit to society to be gained by giving jail time to first time, low level offenders. Nevertheless, the courts must ensure that a defendant's constitutional rights are protected and that pleas are not taken without a defendant's clear understanding of the nature of the plea and its direct consequences.
The record in the present case is devoid of any indication that the defendant understood what was transpiring. There is no way to determine whether Mr. Yu spoke with his attorney at any point during the proceedings. There is nothing to show whether Mr. Yu was accepting the plea because he believed he had no choice (he would otherwise have to retain counsel that he may or may not be able to afford), or if he truly understood that the order of protection would bar him from his home and his child. He also claims that he was not fully informed of the charges against him. Since appellant did not allocute, it cannot be determined on the record whether he understood the accusations and the consequences of a guilty plea.
Allocution can properly be waived under the theory that where a defendant pleads guilty to a lesser crime than the one charged in an indictment, a factual basis for the plea is unnecessary ( see e.g. People v. Claireborne, 29 NY2d 950; see also People v. Moore, 71 NY2d 1002).
However, particularly in cases where the defendant does not speak English and has no experience with the criminal court system and its procedures, an allocution would be preferable to enable the court to determine whether the defendant has any comprehension of the proceedings. Additionally, to avoid such situations, where the voluntariness of the plea will not be determinable otherwise, the court should inquire whether defendant has conferred with counsel and whether the charges and plea have been explained in addition to setting forth the rights being waived in taking the plea. The court should offer defendant an opportunity for a second call to provide the opportunity to fully discuss the ramifications of the plea with counsel.
The law presently requires that the defendant be advised of all direct consequences of a plea. As Chief Judge Kaye stated in People v. Catu ( 4 NY3d at 244):
"While a trial court has no obligation to explain to defendants who plead guilty the possibility that collateral consequences may attach to their criminal convictions, the court must advise a defendant of the direct consequences of the plea ( see People v. Ford, 86 NY2d 397 [1995]). Collateral consequences 'are peculiar to the individual and generally result from actions taken by agencies the court does not control' ( id. at 403). A direct consequence 'is one which has a definite, immediate and largely automatic effect on defendant's punishment' ( id)."
In People v. Ford ( 86 NY2d 397), the Court of Appeals held that deportation by the Immigration and Naturalization Service is a collateral consequence of a guilty plea, as are the loss of the right to vote, the loss of the right to travel abroad, the loss of a civil service job, the loss of the right to possess firearms or the receipt of a dishonorable discharge from the army. The distinguishing factor in all these examples of indirect consequences is that the consequence alluded to is meted out by an agency other than the sentencing court.
An order of protection, as here, issued by the sentencing court clearly must be included within the realm of direct consequences of a guilty plea. In this case, the order of protection was an explicit part of the plea bargain, yet the court did not attempt to explain its ramifications to Mr. Yu until after he had pleaded guilty. Even then, the court did not explicitly state that Mr. Yu would not be allowed to return to his home for a full year and be separated from his child. The defendant was effectively made homeless, separated from his spouse and lost custody of his child by his seemingly innocuous plea to a violation. It would have been preferable if all these direct consequences of his guilty plea were made plain to him before he pleaded guilty.
Given the sparsity of the record, and the distinct possibility that Mr. Yu's attorney did explain all of these matters, and the fact that the claims made by Mr. Yu regarding the lack of understanding and voluntariness of his plea are all dehors the record, I concur that the judgment of conviction must be affirmed, however, if defendant be so advised, he may move to vacate the judgment pursuant to CPL 440.10.