The People, Respondent,v.Raymond Leach, Appellant.

Brief

N.Y.January 12, 2016

To be argued by Steven A. Feldman: 30 Minutes COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. APL-2015-00040 RAYMOND LEACH, Appellant. BRIEF FOR APPELLANT RAYMOND LEACH FELDMAN and FELDMAN Attorneys at Law 626 Reckson Plaza West Tower, 6 Floorth Uniondale, NY 11556 (516) 522-2828 Steven A. Feldman Attorney for Raymond Leach of counsel TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 POINT I: THE APPELLATE WAIVER, FIRST ADDRESSED AND E X E C U T E D A F T E R S E N T E N C E , I S UNENFORCEABLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 POINT II: A STIPULATED PAYMENT, AS CONSIDERATION FOR THE RETURN OF MISLAID MEDICAL RECORDS, DOES NOT CONSTITUTE ATTEMPTED GRAND LARCENY IN THE THIRD DEGREE, AND, THEREFORE, APPELLANT’S PLEA SHOULD BE VACATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 AFFIDAVIT OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 i TABLE OF AUTHORITIES FEDERAL CASES Dixon v. Miller, 293 F.3d 74 (2d Cir. 2002) . . . . . . . . . . . . 12 In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) . . . . . . . . . . . . . . . . . . . . . . 11 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S. Ct. 2311, 57 L. Ed. 2d 159 (1978) . . . . . . . . . . . 9 United States v. Borrero-Acevedo, 533 F.3d 11 (1 Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .st 9 STATE CASES People v. Bradshaw, 18 N.Y.3d 257, 265 (2011) . . . . . . . . . . 8 People v. Brown, 122 A.D.3d 133 (2d Dept. 2014) . . . . . . . . 8 People v. Callahan, 80 N.Y.2d 273 (1992) . . . . . . . . . . . . . . 7 People v. Davis, 24 N.Y.3d 1012 (2014) . . . . . . . . . . . . . . . 17 People v. Finn, 56 A.D.3d 490 (2d Dept. 2008) . . . . . . . . . 10 People v. Hernandez, 19 A.D.3d 706 (2d Dept. 2005) . . . . 10 People v. Leach, 115 A.D.3d 677 (2d Dept. 2014) . . . . . . 1, 6 People v. Parilla, 8 N.Y.3d 654, 660 (2007) . . . . . . . . . . . . 15 People v. Lopez, 71 N.Y.2d 662 (1988) . . . . . . . . . . . . . 16, 17 People v. Mydosh, 2006 N.Y. App. Div. LEXIS 2864, 810 N.Y.S.2d 370 (2d Dept. 2006) . . . . . . . . . . . . . . 10 ii People v. Nixon, 21 N.Y.2d 338 (1967), cert. denied sub nom. Robinson v. New York, 393 U.S. 1067, 21 L. Ed. 2d 709, 89 S. Ct. 721 (1969) . . . 7 People v. Reyes, 74 N.Y.2d 837 (1989) . . . . . . . . . . . . . . . . . 6 People v. Seaberg, 74 N.Y.2d 1 (1989) . . . . . . . . . . . . . . 7, 16 FEDERAL STATUTES 42 U.S.C.§ 1320d-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 STATE STATUTES Criminal Procedure Law § 470.05(2) . . . . . . . . . . . . . . . . . . 15 Criminal Procedure Law §440.10 . . . . . . . . . . . . . . . . . . . . 16 1 PRELIMINARY STATEMENT Appellant, Raymond Leach, appealed from a conviction of Attempted Grand Larceny in the Third Degree and a sentence of one-year imprisonment, entered on June 29, 2011, in County Court, Orange County (Hon. Jeffrey G. Berry). On March 5, 2014, the Supreme Court, Appellate Division, Second Department affirmed the judgment of conviction, People v. Leach, 115 A.D.3d 677 (2d Dept. 2014), and, on February 3, 2015, this Court granted leave to appeal (Hon. Eugene F. Piggott, Jr.). 2 QUESTIONS PRESENTED 1. Is the appellate waiver, addressed and executed after sentence, untimely and thus unenforceable? 2. Does a stipulated payment, as consideration for the return of mislaid medical records, constitute Attempted Grand Larceny in the Third Degree and, if not, should the plea be vacated? 3 STATEMENT OF FACTS Appellant, Raymond Leach, found another person’s medical records in a parking lot (Appendix: 5). In an attempt to return the records, he contacted the Greater Hudson Valley Family Center [“Family Center”], in the Town of Cornwall (Appendix: 5). The Center entered into a stipulation, which the People were unable to locate, with Appellant, in which it agreed to pay him $10,000 if he agreed not to “take the matter to court” (Appendix: 5). At the plea colloquy, Judge Berry asked Appellant: “You knew that[,] by doing that[,] you were going to put them in a position where to keep you from taking them to court or something, that you shouldn’t have done that? You should have just given them the records if you found them, is that a fair statement?” (Appendix: 5-6). Appellant replied: “That is not a fair statement” (Appendix: 6). Appellant and defense counsel then had an off-the-record discussion (Appendix: 6). The Court then asked Appellant whether, if he “ ... found records of somebody else, you should 4 give them to the provider, is that a fair statement?” (Appendix: 6). Appellant said “[y]es”--of course, because that is exactly what he did when he returned them to the provider (Appendix: 6). The Court then suggested that, in accepting $10,000 pursuant to the agreed-upon, negotiated stipulation, in return for his efforts in finding, locating and delivering mislaid medical records, with the attendant HIPAA fines, to the complainant, Appellant “shouldn’t have done what [he] did,” was “overreaching” or was somehow “extorting” money from the Family Center (Appendix: 6). After the Center “gave” (Appendix: 5) Appellant the negotiated $10,000 pursuant to the agreement, it then contacted the authorities, and claimed Appellant had somehow committed a crime, in an effort to have its money returned. Appellant then pleaded guilty to Attempted Grand Larceny in the Third Degree, in violation of Penal Law §§ 110.00/155.35 and 155.05(2)(e)(b) (Appendix: 3). In passing, the Court said “[y]ou must waive and give up your right to appeal” (Appendix: 2). 5 On July 27, 2011, the Court sentenced Appellant to one year in the County jail. It was only after the Court accepted Appellant’s plea and sentenced him, that the Court first asked him to waive his right to appeal (Appendix: 9-10). . While the sentence has been served, and that issue,1 which was raised before the Second Department, is now moot, People v. Reyes, 74 N.Y.2d 837 (1989), the enforceability of the waiver remains material to the sufficiency of the plea itself, in Point II, infra. 6 ARGUMENT POINT I THE APPELLATE WAIVER, FIRST ADDRESSED AND EXECUTED AFTER SENTENCE, IS UNENFORCEABLE. After cursorily mentioning the appellate waiver during the plea, the County Court allocuted Appellant on the waiver after his sentence, hence stripping it of its intelligent, knowing and voluntary character. Because this waiver was untimely, it is ipso facto unenforceable. Without addressing the issue of untimeliness, the Supreme Court, Appellate Division, Second Department simply ruled that the waiver was “valid.” People v. Leach, 115 A.D.3d 677, 679 (2d Dept. 2014). It is, however, in error.1 During the plea colloquy, Judge Berry only tangentially 7 referred to the appellate waiver in a single sentence. He told Leach he would have to waive his right to appeal, yet otherwise conducted no colloquy about the waiver (Appendix: 2). That is improper. While there is no “uniform mandatory catechism of pleading,” People v. Nixon, 21 N.Y.2d 338, 353 (1967), cert. denied sub nom. Robinson v. New York, 393 U.S. 1067, 21 L. Ed. 2d 709, 89 S. Ct. 721 (1969), a waiver of the right to appeal will not be enforced unless it was knowingly, intelligently, and voluntarily entered. People v. Seaberg, 74 N.Y.2d 1, 11 (1989). “To facilitate appellate review, the Seaberg opinion urges the trial courts to ensure that the terms and conditions of the agreement, as well as the accused’s understanding of those terms and conditions, are made apparent on the face of the record.” People v. Callahan, 80 N.Y.2d 273, 280 (1992). Here, the County Court did not place the terms and conditions of the appellate waiver on the record, either before, or at the time of the plea. Its bare inquiry--asking the defendant if he was waiving his right to appeal--was insufficient to elicit an . This is no different than issuing Miranda warnings2 after--rather than before--a defendant confesses under police interrogation, which would eviscerate them of their import. The 8 enforceable waiver. Faced with a large number of improper waivers, the Second Department recently underscored the unenforceability of this type of bare-bones appellate waiver. In People v. Brown, 122 A.D.3d 133 (2d Dept. 2014), it ruled that lower courts should provide some explanation of the nature of the right that the defendant is being asked to waive * * * The best way to ensure that the record reflects that the right is known and intentionally relinquished by the defendant is to fully explain to the defendant, on the record, the nature of the right to appeal and the consequences of waiving it. A full explanation is particularly important in view of Appellant’s history of mental illness, which led to a pre-plea finding that he was unfit. People v. Bradshaw, 18 N.Y.3d 257, 265 (2011)(“The absence of this inquiry is particularly troubling given defendant’s background and history of mental illness.”). While the County Court eventually asked Appellant about the waiver after the sentence, that is of no legal import, because, by then, it was denuded of its prophylactic value. This post-2 timing is, of course, critical. . The People claimed before the Second Department that3 “ ... the defendant never objected to any aspect of the [appellate] waiver ... and thus, his claim is unpreserved for appellate review” (People’s brief: 19). Yet it cites no authority for this proposition, because none exists in New York. This Court has never ruled that a defendant must object to sufficiency of an appellate waiver. Although certain federal courts apply a waiver rule, that is subject to the Federal Rules of Criminal Procedure, which are not controlling in New York. Compare United States v. Borrero-Acevedo, 533 F.3d 11 (1 Cir. 2008)(“We apply, for thest first time, the Supreme Court’s recent plain error decisions to a defendant’s unpreserved claim of Rule 11(b)(1)(N) error as to a waiver of appeal clause at the change-of-plea hearing.”). 9 sentence appellate waiver precluded the defendant from negotiating with the people about the loss of that vital right. It also prevented him from factoring that into his plea calculus. Notably, no case, ever decided, in any state or federal jurisdiction in the United States, has ever enforced an appellate waiver that was extracted after a plea and sentence, rather than before the plea. For good reason. Any other rule would sanction plea by ambush. Cf. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S. Ct. 2311, 2332 57 L. Ed. 2d 159 (1978)(“ ... ‘trial by ambush’ well may disserve the cause of truth ....”)(citations omitted).3 10 While the People also claimed, in its brief to the Second Department (Page: 23), that the Court had “routinely upheld” Judge Berry’s novel practice, that is not the case. In People v. Finn, 56 A.D.3d 490 (2d Dept. 2008), People v. Mydosh, 2006 N.Y. App. Div. LEXIS 2864, 810 N.Y.S.2d 370 (2d Dept. 2006), and People v. Hernandez, 19 A.D.3d 706 (2d Dept. 2005), the Second Department never once sanctioned--let alone addressed--a post-sentence appellate waiver. Because Appellant was never informed, and fully allocuted, that, as part of his plea, he would be waiving his right to challenge his plea, the waiver cannot be deemed knowing, intelligent and voluntary. The post-sentence waiver was not within the contemplation of the parties. Nor was it a basis of the bargain. As such, it should be found unenforceable, and Point II, infra, should be reached, on the merits. 11 POINT II A S T I P U L A T E D P A Y M E N T , A S CONSIDERATION FOR THE RETURN OF MISLAID MEDICAL RECORDS, DOES NOT CONSTITUTE ATTEMPTED GRAND LARCENY IN THE THIRD DEGREE AND, THEREFORE, APPELLANT’S PLEA SHOULD BE VACATED. Appellant pleaded guilty to Attempted Grand Larceny in the Third Degree (Appendix: 3). When the Court asked him whether he “ ... shouldn’t have” asked for money to repatriate the medical records, he insisted “[t]hat is not a fair statement” (Appendix: 6). Appellant, who raised this identical claim to the Second Department, was correct. On the unique facts of this case, Appellant sought to underscore that the quid pro quo of records for money did not constitute larceny, and, therefore, he was pleading guilty involuntarily. Critically, no case ever decided, in any state or federal court, criminalizes a stipulation, whereby two parties voluntarily agree that a party that mislays medical records will remunerate the finder thereof. Appellant’s conviction thus violates the Fourteenth Amendment due process clause, because each element of the 12 crime has not been proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Appellant’s conduct simply did not rise to the level of Attempted Grand Larceny in the Third Degree, in violation of section 155.35 of the New York Penal Law. A person is guilty of that crime when he steals property that has a value over three thousand dollars. Here, however, there was no proof of stealing. Stealing occurs when a person takes something that does not belong to him, in a way that is wrong or illegal, takes something that the person is not supposed to have without asking for permission, or wrongly takes and uses another person’s property. None of that occurred here. Appellant never “took” or used anything without permission; on the contrary, he merely “found” and repatriated medical records. Nor did he retain or somehow convert records that did not belong to him; in fact, he did the opposite, by taking reasonable measures to return them to their rightful owner. Because the People could not prove that Appellant had 13 stolen the medical records, it sought to prove that he somehow “stole” the $10,000 he received for the records. But this theory is bootless as well. Contrary to the County Court’s finding, the act of negotiating a stipulation of settlement, as consideration for the finding and locating of medical records, neither constitutes “overreaching” nor “extort[ion]” (Appendix: 6). Significantly, overreaching is not a crime when two parties negotiate a stipulation, or agreement, even if one party obtains a better deal. While overreaching suggests Appellant out-negotiated the Family Center, that is not a crime, because the very act of negotiating bespeaks good faith, not mens rea. Nor can a stipulation, on the unique facts of this case, be extortion. It is, rather, a meeting of the minds, with a reward payable to a finder. If the Family Center truly believed it was the victim of extortion, it would have called the police, rather than negotiating a stipulation. It would have also contacted the Special Investigations Unit of the Orange County District Attorney, rather . Failure to comply with HIPAA can result in civil and4 criminal penalties of up to $1.5 million. See 42 U.S.C.§ 1320d-5. 14 than drafting and tendering a check. Instead, it elected to entrap Appellant, obtain the benefit of the bargain by taking receipt of the medical records, hence immunizing its wrongful conduct against a HIPAA penalty, and4 then contacted the police to claim Appellant committed larceny in order to recover its $10,000. In the face of the complainant’s misconduct, Appellant’s conduct, taken in totality, was not a crime--let alone attempted larceny by extortion. Were it deemed a crime, the risk arises that every finder’s fee could be mischaracterized as criminal extortion, when, in reality, it is little more than a post hoc rationalization by the payor to recover the property and the payment. Yet a person who finds and repatriates property is not guilty of a crime simply because, in a stipulated agreement, he either asks for, or is offered, a reward. Yet because that occurred here, the plea lacks a sufficient factual predicate. 15 Appellant objected to the plea on these identical grounds, when he explicitly told the Court that it was not a “fair statement” that he had committed a crime (Appendix: 6). He thus preserved this error, as a matter of law, for appellate review. See Criminal Procedure Law § 470.05(2). Where Appellant then conferred with counsel, off the record, immediately after telling the Court he did not agree with its rendition of the facts, he was sending an unmistakable message to the Court that he was an innocent man who was pleading guilty involuntarily. Compare People v. Parilla, 8 N.Y.3d 654, 660 (2007)(“ ... this is not a case where the alleged [error] goes to the voluntariness of defendant’s plea.”). This risk of involuntariness is underscored because the County Court failed to ask a single question about the grounds for the defendant’s statement, which was, in reality, a protestation of innocence. Its two subsequent questions do not remove the taint of involuntariness, because they never addressed the grounds for Appellant’s dispute over the facts. Even if the post-sentence appellate waiver were somehow 16 enforceable, in Point I, infra, the voluntariness of Appellant’s plea would still survive the waiver. People v. Seaberg, 74 N.Y.2d 1, 11 (1989)(“A waiver, to be enforceable, must not only be voluntary but also knowing and intelligent.”). While defense counsel did not move to either withdraw his plea under Criminal Procedure Law § 220.60(3) or vacate the judgment of conviction under Criminal Procedure Law § 440.10, that is of no moment under the “rare case” exception to the preservation doctrine, because he specifically negated the theft element of the crime. People v. Lopez, 71 N.Y.2d 662, 666 (1988)(“In that rare case, however, where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea, we have held that the trial court has a duty to inquire further to ensure that defendant’s guilty plea is knowing and voluntary.”). Here, Appellant’s plea cast significant doubt on his guilt, because he expressly told the Court it was not a fair statement that he “ ... shouldn’t have” asked for money to repatriate the medical 17 records. This removed the element of stealing from the plea. Compare People v. Davis, 24 N.Y.3d 1012 (2014)(Appellant’s “ ... factual recitation [did not] negate the intent element of the crime to which he pleaded guilty. His plea therefore does not qualify for the ‘rare case’ exception to the preservation requirement.”). When the defendant told the court its version of the facts was not fair, the Court then failed to discharge its duty to inquire. Compare Lopez, 71 N.Y.2d at 666 (where the plea casts doubt on guilt, “ ... the trial court has a duty to inquire further to ensure that defendant’s guilty plea is knowing and voluntary.”). Instead, it simply asked whether it was a fair statement that he should not have “extort[ed] or “overreach[ed]” the Family Center. Yet restated questions which importune a defendant to admit guilt do not address the voluntariness of the plea. As a result, Appellant’s plea should be vacated, because it was neither voluntary nor inculpatory. 18 CONCLUSION FOR THE REASONS STATED IN POINT 1, THE APPELLATE WAIVER IS UNENFORCEABLE, AND FOR THE REASONS STATED IN POINT II, THE PLEA IS BOTH INVOLUNTARY AND NON-INCULPATORY. Dated: March 12, 2015 Uniondale, NY Respectfully Submitted, Steven A. Feldman