The People, Respondent,v.Tyrone D. Manor, Appellant.BriefN.Y.March 31, 2016 To Be Argued By: Kimberly F. Duguay Time Requested: 10 Minutes APL-2015-00069 __________________________________________________________________ Court of Appeals State of New York _______________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- TYRONE D. MANOR, Appellant. _______________________ __________________________________________________________________ REPLY BRIEF FOR APPELLANT __________________________________________________________________ TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: KIMBERLY F. DUGUAY Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4069 Fax: (585) 753-4234 Date Completed: July 23, 2015 _________________________________________________________________ TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i, ii Point I: The Record Demonstrates That Mr. Manor’s Guilty Plea Was Not Knowingly, Intelligently And Voluntarily Entered, And The Trial Court Erred In Summarily Denying His Motion To Withdraw His Plea. 1 Point II: Mr. Manor Was Denied His Right To Effective Assistance of Counsel. 11 CONCLUSION 17 i TABLE OF AUTHORITIES Federal Cases Brady v United States, 397 US 742 [1970] ............................................................ 2 Padilla v Kentucky, 559 US 356 [2010] ................................................................ 15 Powell v Alabama, 287 US 45 [1932] .................................................................. 15 Strickland v Washington, 466 US 668 [1984] ...................................................... 16 State Cases People v Baldi, 54 NY2d 137 [1981] ................................................................... 16 People v Beasley, 25 NY2d 483 [1969] ................................................................. 9 People v Benevento, 91 NY2d 708 [1998] ........................................................... 16 People v Brown, 14 NY3d 113 [2010] ................................................................... 2 People v Cooks, 67 NY2d 100 [1986] .................................................................... 8 People v Donovan, 13 NY2d 148 [1963] .............................................................. 16 People v Fiumefreddo, 82 NY2d 536 [1993] ......................................................... 4 People v Flowers, 30 NY2d 315 [1972] ................................................................. 4 People v Gonzalez, 1 NY3d 464 [2004] ................................................................. 5 People v McKennion, 27 NY2d 671 [1970] ........................................................... 8 People v Nixon, 21 NY2d 338 [1967] ................................................................ 1, 7 People v Tyrell, 22 NY3d 359 [2013] ................................................................ 7, 8 State Statutes Criminal Procedure Law § 220.60 ......................................................................... 8 Criminal Procedure Law § 440.10 .......................................................................... 8 Penal Law § 15.05 .................................................................................................... 5 Penal Law § 70.00 ............................................................................................ 14, 15 Penal Law § 70.02 ................................................................................................. 14 Penal Law § 125.20 .............................................................................................. 14 Penal Law § 125.25 ......................................................................................... 14, 15 ii Constitutions NY Const art I, § 6 ............................................................................................... 16 US Const Amends, VI ...................................................................................... 15, 16 US Const Amends, XIV ................................................................................. 15, 16 1 Point I: The Record Demonstrates That Mr. Manor’s Guilty Plea Was Not Knowingly, Intelligently And Voluntarily Entered, And The Trial Court Erred In Summarily Denying His Motion To Withdraw His Plea. This Court has long held that guilty pleas must be knowingly, intelligently and voluntarily made. Where a defendant raises doubt upon his guilt or the voluntariness of his plea at the time his guilty plea or sentencing, defendant shall not be permitted to plead guilty until the court ensures that he knows what he is doing (People v Nixon, 21 NY2d 338, 344 [1967]). Almost fifty years ago, this Court stated: “It is . . . quite clear that where initial inquiry exposes difficulties or subsequent interpositions by defendant on sentencing raise questions, the court should be quick to offer the defendant an opportunity to withdraw his plea and at the very least conduct a hearing. Such opportunities offered will squelch the faker and protect the truly misguided ones; and prompt hearings will be better than later ones after direct appeal or collateral postconviction attack” (id at 355.) Here, the People argue that the trial court’s summary denial of Mr. Manor’s motion to withdraw his guilty plea was proper because: 1) Mr. Manor’s attorneys did not attach an affidavit from Mr. Manor to the motion to withdraw the plea (People’s Brief 9-11); and 2) the information contained in Mr. Manor’s motion was inconsistent with the statements Mr. Manor made during the plea colloquy (People’s Brief 10). 2 First, the standard for requiring a hearing is whether the motion to withdraw raises a genuine question of fact based upon the totality of the circumstances as to whether the guilty plea was knowingly, intelligently and voluntarily made (People v Brown, 14 NY3d 113, 118 [2010]; Brady v United States, 397 US 742, 749 [1970]). Here, that question of fact was provided by affirmations from Mr. Manor’s attorneys and a report by a licensed psychiatrist, all of whom agreed that Mr. Manor’s decision making capacity at the time of the guilty plea was impaired and that his plea was not knowingly and voluntarily entered. Notably, Mr. Manor’s attorneys were concerned regarding the voluntariness of Mr. Manor’s plea before they spoke to him at the jail and verified that he was in fact confused about the nature of the guilty plea and its consequences (R 161-162, 165-166). The attorneys’ decision not to attach an affidavit from Mr. Manor to the motion did not negate the genuine question of fact raised in their affirmations and the psychiatrist’s report. To the contrary, the attorneys’ affirmations were presumably unaffected by any potential buyer’s remorse, and were based upon their personal observations and discussions with Mr. Manor.1 Second, the People argue that the information contained in the motion to withdraw the guilty plea should be discredited because it was inconsistent with Mr. Manor’s statements at the time of his plea. But if statements made during a plea 1 Mr. Manor’s trial attorney, Ms. Byrne, noted in her affirmation that her fee remained the same whether Mr. Manor pleaded guilty or if the case went to trial (R 166). Consequently, she would receive no financial benefit if Mr. Manor was permitted to withdraw his plea and she tried the case. 3 colloquy are controlling, no matter what the circumstances were at the time they were made, then a potentially insurmountable burden is placed on pleading defendants to establish that their guilty plea was not voluntarily and intelligently made. In general, statements that are coerced, misinformed, uninformed, or the product of a diminished mental capacity are not voluntary. Involuntary statements are not reliable. Unreliable statements alone cannot be used to invalidate new information that sheds light on the conditions under which those very statements were made in the first place. If any statements made during a plea colloquy are controlling, voluntary or not, then an involuntary plea colloquy would be virtually immune from challenge. Such a rule would not only undermine the integrity of plea proceedings, it would permit courts to craft plea colloquies that are effectively bulletproof - - as any later acquired information that is inconsistent with statements made during a plea colloquy would “belie” the record and be per se unreliable, no matter what the circumstances were at the time. This Court has never determined that statements made during a plea colloquy are per se more reliable than any later acquired information that is inconsistent with those statements. To the contrary, this Court has rejected “any mandated procedure or ritualistic form” in plea proceedings in favor of a careful case-by-case evaluation based upon the totality of the circumstances to determine whether a plea was knowingly, intelligently and voluntarily made (see People v 4 Fiumefreddo, 82 NY2d 536, 546 [1993]). Where the court is provided with “palpable evidence that the guilty plea lacks the integrity and stability acceptable in a civilized criminal system,” the plea must be vacated (People v Flowers, 30 NY2d 315, 319 [1972]). Even still, Mr. Manor’s statements during his plea colloquy were troubling and the supplemental information provided in the motion to withdraw the guilty plea explained Mr. Manor’s strange responses. Mr. Manor’s attorneys noted his aberrant demeanor during his plea colloquy, and informed the court: ● “We had previously discussed the case and his innocence many times before . . . I did not believe he could colloquy and he had difficulty doing so. He seemed robotic, uncommunicative and weird” (R 165); and ● “[Mr. Manor] had great difficulty admitting the element of intent, stammering “I intended I intended.” One of the major issues was lack of intent. Mr. Manor had always averred that the decedent’s death was an accident” (R 161.) These affirmations were supported by the record, as Mr. Manor in fact had a great deal of trouble with the plea colloquy. Mr. Manor explicitly denied any intent to cause death during his brief factual colloquy with the trial court, and informed the court that he “wasn’t thinking” when he threw a pair of garden shears back at Ms. Curry after she had thrown them at him (R 100). The Court told Mr. Manor “the plea that you are entering is a plea to Murder in the Second Degree. I’m not trying to put words in your mouth but in order for me to accept the plea of 5 guilty I have to be satisfied that you have committed a crime. That crime is with intent to cause the death of Ms. Curry you caused her death” (R 100). Despite the court’s insistence that it was not putting words into Mr. Manor’s mouth, the court did little more than tell Mr. Manor what he had to say to plead guilty. But Mr. Manor’s response was still odd and, as defense counsel said, “robotic” as he simply said “I intended” when the court asked him whether he intended to cause death or not (R 100). The trial court’s questioning of Mr. Manor did not ensure that he understood the nature of the charge he was pleading to. This was especially significant as Mr. Manor’s denial of any intent to cause death came on the heels of his description of the underlying incident, which was factually inconsistent with the crime of intentional murder.2 Two attorneys believed that Mr. Manor did not knowingly or intelligently appreciate the consequences of his guilty plea, as did a licensed psychiatrist who personally evaluated him (R 162, 166, 180). If Mr. Manor did not appreciate the nature or the consequences of the statements he made during the plea proceedings, 2Mr. Manor’s factual recitation was inconsistent with a conscious objective to cause death as he informed the court that he “wasn’t thinking” when he threw the garden shears back at Mr. Curry, and was more consistent with a reckless mental state (see People v Gonzalez, 1 NY3d 464, 465 [2004]; Penal Law §§ 15.05 [1], [3]). This Court has found that “[t]he requisite elements should appear from the defendant's own recital and, if the circumstances of the commission of the crime as related by the defendant do not clearly spell out the crime to which the plea is offered, then, the court should not proceed, without further inquiry, to accept the guilty plea as a valid one” (id at 308). Here, the trial court merely told Mr. Manor that he needed to say that he intended to kill Ms. Curry in order to plead guilty, which did little to ensure that Mr. Manor understood the nature of the charge he was pleading to and that he was in fact guilty of that charge. 6 those very statements cannot automatically trump any later acquired information that shed light on the conditions under which those very statements were made in the first place. At the very least, the court had some duty to conduct an inquiry with Mr. Manor to ensure that his guilty plea was a knowing and voluntary one. Perhaps Mr. Manor’s impaired mental condition and troubling plea colloquy could have been overcome by a meaningful opportunity to meet with counsel before the guilty plea. Counsel may have been able to ensure that he understood the different plea options, the risks of a trial versus a guilty plea, and the attorneys’ legal opinion as to whether he should accept either offer or not. Moreover, counsel could have ensured that he understood different sentencing consequences, and that was not misled into believing that he could be released in seven years as his relatives insisted. If after meeting privately Mr. Manor was still unable to understand the different plea offers and their consequences, defense counsel could have requested an adjournment to meet with him again and, if needed, to obtain a psychiatric evaluation before he pleaded guilty. But this did not happen. Instead, the sole plea discussion occurred during a harum-scarum meeting with relatives shortly before the plea proceedings, and was fraught with misinformation and coercion. The meeting ended as soon as Mr. Manor acquiesced to the relatives demands and he was immediately led to the courtroom to plead guilty to a crime he had consistently denied (R 180). There is no indication whatsoever that Mr. Manor ever met privately with either of his 7 attorneys to discuss the respective plea offers. Defense counsel described the conclusion of meeting as follows: “Mr. Manor ran into the bathroom. Finally he emerged. The family members kept yelling you have to do this, you have to do this. Mr. Manor, to my surprise, agreed and the plea ensued” (R 160-161). Despite having a strong legal defense, Mr. Manor pleaded guilty to the only count in the indictment and had a mandatory life sentence. Defense counsel did meet privately with Mr. Manor a few days after the plea and, after confirming that Mr. Manor in fact did not understand the nature of the plea or its consequences, hired a licensed psychiatrist to evaluate him (R 161-162, 166). The psychiatrist agreed that Mr. Manor did not understand the plea or its consequences, and that his decisional capacity at the time of the plea was impaired (R 177). Mr. Manor moved to withdraw his guilty plea a full two months before he was sentenced (R 111, 158) (People v Nixon, 21 NY2d 338, 355 [1967] [“The promptness or staleness of complaint with respect to propriety of a guilty plea [is a] a significant factor to be considered”]). Nevertheless, the court summarily denied his motion without asking Mr. Manor a single question. 3 The People’s argument that the issue in this appeal should be raised in a 440 motion is without merit as Mr. Manor is procedurally barred from doing so 3Notably the trial court denied Mr. Manor’s motion to withdraw his plea without a hearing because it was “satisfied that the plea that was entered was a knowing, intelligent and voluntary waiver of his rights to trial on the day of trial” (R 112). But the court did not determine that Mr. Manor’s understood the nature and the consequences of pleading guilty to intentional murder or that his decision to plead guilty to that crime was knowingly, intelligently and voluntarily made (see People v Tyrell, 22 NY3d 359, 361 [2013].) 8 (People’s Brief 11). Mr. Manor filed a post-allocution motion to withdraw his guilty plea pursuant to CPL 220.60 before he was sentenced, which preserved his right to raise the issue of the voluntariness of his plea on direct appeal (see People v Tyrell, 22 NY3d 359, 363-364 [2013]). Mr. Manor provided factual support for his motion via attorney affirmations and a psychiatrist’s report. Those documents are part of the record. Consequently, the claimed error in this case is clear from the face of the record. When sufficient facts appear on the record to permit the question to be reviewed, the motion to vacate the plea must be reviewed by direct appeal (CPL 440.10 [2]; People v Cooks, 67 NY2d 100, 104 [1986] [The purpose “is to prevent CPL 440.10 from being employed as a substitute for direct appeal when defendant was in a position to raise an issue on appeal . . . or could readily have raised it on appeal but failed to do so”). Given that Mr. Manor’s claim was preserved and is reviewable on direct appeal, it may not be raised in a CPL 440.10 motion (Criminal Procedure Law §440.10 [2]). To the extent that the record could have been developed further to determine the issue of voluntariness, this was the result of the trial court’s failure to grant a hearing - - which is the very subject of the direct appeal. Indeed, it is submitted that some further record development is needed whenever this Court remands a case for a hearing to determine the voluntariness of a plea (see e.g. People v McKennion, 27 NY2d 671, 672-673 [1970] [Where, after a plea of guilty has been entered, and before sentence, defendant states to the court he is not guilty, 9 or that he believes he is not guilty, the rule has developed that the court should not, except in extraordinary circumstances, then impose sentence, but either grant an application to allow the plea to be withdrawn; or conduct a hearing to determine whether the application has merit”). The totality of the circumstances in this case reveal that Mr. Manor consistently denied his guilt of intentional murder when speaking to police, when speaking to his attorneys, and even during his plea colloquy (R 85-86, 99, 161, 163). The only time Mr. Manor admitted an intent to cause death was when the court told him that he had to do so for it to accept his guilty plea (R 101). Manor’s attorneys believed that there were compelling legal issues regarding the element of intent and a justification defense, and that Mr. Manor should not accept either plea offer. But the only discussion of the potential plea offers occurred during a chaotic meeting that was rank with misinformation and coercion (R 159-166.) Moreover, the meeting and resulting guilty plea occurred at a time when Mr. Manor’s mental and physical condition were significantly impaired (R 161-162, 165-166, 177). This Court has long held that the trial court should conduct a hearing “when at plea-taking or upon sentencing it appears the defendant misapprehends the nature of the charges or the consequences of his plea” (People v Beasley, 25 NY2d 483, 488 [1969].) The information provided in Mr. Manor’s motion to withdraw his guilty plea raised a legitimate issue of fact regarding the voluntariness of his plea, and the trial court had a duty to conduct at least some inquiry with Mr. Manor 10 to ensure that he knew what he was doing when he pleaded guilty, and ask him if it was still his desire to do so. But it conducted no inquiry whatsoever with Mr. Manor. Consequently, the record in this case established that Mr. Manor’s guilty plea was not knowingly, intelligently and voluntarily entered, and it was an abuse of discretion for the trial court to summarily deny his motion to withdraw his plea. 11 Point II: Mr. Manor Was Denied His Right To Effective Assistance of Counsel. The People argue that Mr. Manor received effective assistance of counsel because: 1) counsel discussed the plea offers with him, and negotiated a favorable sentence agreement (People’s Brief 15-16); and 2) Mr. Manor stated during his plea colloquy that he was satisfied with his attorneys’ representation (People’s Brief 16). First, the People rely on Dr. Robert Weismann’s report to claim that “defendant did have time to discuss the case with his attorneys two days prior to the scheduled trial date” (People’s Brief 15). But Dr. Weisman’s full statement regarding the discussion reads as follows: “Mr. Manor discussed his case and the potential for a plea bargain some two days prior to his trial date of November 30, 2009. He was informed at that time of the possible sentences he faced if convicted of Murder in the 2nd degree. According to his attorneys, Mr. Manor then met the morning of his trial with family members, but not his current wife and children. During that pretrial meeting his family members were reportedly vehemently advocating [that] Mr. Manor [accept] a plea deal. Per the report of Ms. Heather Byrne, the morning of the trial and following his family meeting, Mr. Manor appeared ‘different’ than just two days before. Defining this further, Ms. Byrne described him as presenting as exceedingly stressed, appearing highly anxious, and pacing back and forth due to his level of agitation. In her words, ‘Tyrone was not recognizable compared to our meeting just a few days prior to his trial’” (R 178). 12 Dr. Weisman’s report does not suggest that Mr. Manor had any opportunity to discuss the plea offers with his attorneys before pleading guilty, other than the tumultuous meeting that occurred shortly before the guilty plea. Mr. Manor’s trial was originally scheduled for November 30, 2009. But Mr. Manor waived his right to a jury trial on that date, and the case was adjourned until the following day, which was December 1, 2009 (R 89, 93-95). Sometime after the waiver of a jury trial on November 30, 2009, Mr. Manor was provided with two alternative plea offers: 1) plead guilty to intentional murder in return for a promise that his sentence would be capped at twenty years to life; or 2) plead guilty to intentional manslaughter and waive the right to appeal in return for a sentence of twenty-five years of incarceration and five years of post-release supervision (R 96, 182). The prosecutor below stated in his responding affirmation that “with the bench trial scheduled to begin on December 1st, 2009, the defendant had the evening of November 30th, 2009 to discuss these options with his counsel” (R 182). According to the defense attorneys, the only discussion that occurred with Mr. Manor regarding the alternative plea offers occurred shortly before the plea proceedings, at a time when counsel believed that Mr. Manor’s mental and physical conditions were impaired, and in an environment that was chaotic, and replete with misinformation and coercion. Reading Dr. Weisman’s statement in the proper context reveals that Dr. Weisman referenced the attorney meeting 13 “some two days” before the original trial date to illustrate the deterioration in Mr. Manor’s mental condition between the time of that meeting and at the time of the meeting that occurred shortly before the guilty plea. Thus, not only did Dr. Weisman’s report fail to suggest that Mr. Manor had an additional discussion with his attorneys regarding the plea offers, the report supported Mr. Manor’s claim that the sole meeting to discuss the plea offers was replete with coercion and occurred at a time when Mr. Manor’s decision making capacity was diminished to such an extent that he did not “knowingly or intelligently appreciate the consequences” of pleading guilty to intentional murder (R 177). Second, that Mr. Manor stated during his plea colloquy that he was satisfied with his attorneys’ representation is of no moment because, as further stated above and in Mr. Manor’s opening brief, Mr. Manor’s statement was uninformed and was made at time when he was operating with a diminished mental capacity (R 161- 162). Mr. Manor did not have the information, legal expertise or mental capacity at the time of the plea to make a voluntary and informed statement as to his satisfaction with his legal representation. Indeed, Mr. Manor did not become fully aware of what had even occurred during the plea proceedings and the consequences of those proceedings until after his attorneys visited him several days later at the jail (R 161-162, 165-166). Significantly, the factual predicate for Mr. Manor’s ineffective assistance claim is based upon his attorneys’ own admissions. Although defense counsels’ 14 efforts in this case were “undoubtedly sincere,” those efforts failed to provide effective and meaningful representation. The attorneys admitted that Mr. Manor consistently denied his guilt of intentional murder, that they believed he had a strong defense to that charge, and that they did not think that he should accept either plea offer. The attorneys were also concerned that Mr. Manor’s mental condition was impaired at the time of their only discussion with him about the plea offers and at the time of the guilty plea. What is more, the attorneys witnessed Mr. Manor being coerced into accepting a plea to intentional murder based upon the legal fiction that he could be released in seven years. There is no indication that either attorney ever discussed the difference between a determinate twenty-five- year sentence and an indeterminate sentence of anywhere between fifteen and twenty years to life in state prison, let alone ensured that Mr. Manor understood that it was legally impossible for him to be released in seven years as his relatives insisted (Penal Law §§ 70.00, 70.02, 125.25, 125.20). 4 Nevertheless, as soon as Mr. Manor succumbed to the relatives’ demand that he plead guilty, Mr. Manor was immediately led to the courtroom where his attorneys stood by silently as he struggled with the plea colloquy. No opportunity 4 Notably, defense counsel confused the plea offers both during and after the plea proceedings, as he: 1) mistakenly had Mr. Manor sign a waiver of appeal despite that it was not a condition of a plea to intentional murder; and 2) described the alternative sentence promises in his motion to withdraw the guilty plea as 15-25 to life for a plea to intentional murder (the correct sentence offer was 15-20 to life) and a sentence of 25 to life for a plea to intentional manslaughter (the correct sentence offer was a determinate term or 25 years with 5 years post-release supervision) (R 96-97, 100-101, 159-160, 182). 15 to speak to Mr. Manor privately was requested. No matter what the attorneys did to prepare for trial or to provide Mr. Manor the opportunity to withdraw his guilty plea, the prejudice from their defective representation on the day Mr. Manor pleaded guilty to intentional murder was devastating, and denied him of his right to effective assistance of counsel. The People’s claim that Mr. Manor’s attorneys negotiated a favorable plea agreement is equally unavailing. Mr. Manor pleaded guilty to the only count in the indictment, a crime that he consistently denied, which came with a mandatory life sentence. Indeed, Mr. Manor was sentenced to 18 years to life in state prison when the worst he could have received after trial was a sentence of 25 years to life (Penal Law §§ 70.00, 125.25). More importantly, the defense attorneys believed that there were “many compelling and triable issues” and that neither plea offer was worth considering (R 161-162, 164). Nevertheless, Mr. Manor was led to courtroom to plead guilty to the charge despite that the attorneys were concerned about his mental state at the time and their only meeting to discuss the plea offer was rank with misinformation and coercion. A defendant has a Constitutional right to “the guiding hand of counsel at every step in the proceedings” (Powell v Alabama, 287 US 45, 69 [1932]; US Const Amends VI, XIV). This includes the right to the effective assistance of competent counsel before deciding whether to plead guilty (Padilla v Kentucky, 559 US 356, 356 [2010].) “The safeguards provided under the Constitution must 16 be applied in all cases to be effective and, for that reason, ‘our legal system is concerned as much with the integrity of the judicial process as with the issue of guilt or innocence’" (People v Benevento, 91 NY2d 708, 714 [1998] citing People v Donovan, 13 NY2d 148, 154 [1963].) For the reasons set forth above and in Mr. Manor’s opening brief, Mr. Manor was denied his right to effective assistance of counsel and his guilty plea should be vacated (Strickland v Washington, 466 U.S. 668 [1984]; People v. Baldi, 54 NY2d 137 [1981]; US Const Amends IV, XIV; NY Const, Art I, § 6). 17 CONCLUSION For the reasons set forth above and in Mr. Manor’s opening brief, it respectfully requested that the order of the Appellate Division be reversed and Mr. Manor’s motion to withdraw his plea of guilty be granted. In the alternative, the matter should be remitted to the county court to conduct a hearing to determine whether Mr. Manor’s guilty plea was knowingly, intelligently and voluntarily entered, and for such other and further relief as this Court deems just and proper. Dated: July 23, 2015 Respectfully submitted, TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant _________________________ BY: KIMBERLY F. DUGUAY Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4069