The People, Respondent,v.Phillip Couser, Appellant. (Appeal No. 2.)BriefN.Y.October 14, 2016 To Be Argued By: James A. Hobbs Time Requested: 15 Minutes APL-2015-00178 APL-2015-00179 __________________________________________________________________ Court of Appeals State of New York _______________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- PHILLIP COUSER, Appellant. _______________________ __________________________________________________________________ REPLY BRIEF FOR APPELLANT __________________________________________________________________ TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: JAMES A. HOBBS Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4213 Fax: (585) 753-4234 Date Completed: October 30, 2015 _________________________________________________________________ TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i, ii Point I: Concurrent Sentences Were Required for the Robbery and Attempted Robberies. 1 Point II: Mr. Couser Received Ineffective Assistance of Counsel with Respect to His Decision to Enter an Alford Plea to a Class A-I Felony. 6 A. Intentional Felony Murder Requires Concurrent Sentencing to the Same Degree as Standard Felony Murder. 6 B. Counsel’s Assessment of the Sentencing Exposure Constitutes Ineffective Assistance at the Plea Stage. 12 Point III: The Alford Plea Colloquy was Inadequate. 16 CONCLUSION 25 i TABLE OF AUTHORITIES Federal Cases Boykin v Alabama, 395 US 238 (1969) ........................................................................................... 21 North Carolina v Alford, 400 US 25 (1970) ........................................................................... 16, 18, 19, 24 State Cases People v Cahill, 2 NY3d 14 (2003) ..................................................................................... 7, 8, 11 People v Cherry, 46 AD3d 1234 (3d Dept 2007) ..................................................................... 6, 10 People v Danielson, 9 NY3d 342 (2007) ............................................................................................. 9 People v Friedman, 39 NY2d 463 (1976) ......................................................................................... 19 People v Harris, 98 NY2d 452 (2002) ........................................................................................... 9 People v Hill, 16 NY3d 811 (2011) .................................................... 16, 17, 19, 20, 21, 22, 24 People v Lopez, 71 NY2d 662 (1988) ......................................................................................... 16 People v Lucas, 11 NY3d 218 (2008) ....................................................................................... 8, 9 People v Mateo, 2 NY3d 383 (2004) ............................................................................................. 9 People v Middleton, 32 AD3d 557 (3d Dept 2006) ............................................................................. 6 People v Miller, 6 NY3d 295 (2006) ........................................................................... 9, 10, 11, 12 ii People v Miller, 91 NY2d 372 (1998) ............................................................................. 16, 18, 24 People v Mox, 20 NY3d 936 (2012) ......................................................................................... 22 People v Parks, 95 NY2d 811 (2000) ......................................................................................... 12 People v Ramirez, 89 NY2d 444 (1996) ........................................................................... 1, 2, 3, 4, 5 People v Rosas, 8 NY3d 493 (2007) ........................................................................................... 12 People v Rowland, 8 NY3d 342 (2007) ........................................................................................... 24 People v Serrano, 15 NY2d 304 (1965) ............................................................................. 19, 20, 22 People v Taylor, 9 NY3d 129 (2007) ............................................................................................. 9 People v Turner, 5 NY3d 476 (2005) ..................................................................................... 13, 14 People v Vandyne, 63 AD3d 1681 (4th Dept 2009) ........................................................................ 10 People v Yong Yun Lee, 92 NY2d 987 (1998) ........................................................................................... 5 Silmon v Travis, 95 NY2d 470 (2000) ............................................................................. 16, 17, 24 State Statutes Penal Law § 70.25 (2) ........................................................... 1, 5, 11, 13, 14, 15, 24 Penal Law § 140.20 ................................................................................................ 11 Penal Law § 125.25 (3) .......................................................................... 6, 7, 8, 9, 11 Penal Law § 125.27 (1) (a) (vii) ................................................ 6, 7, 8, 9, 11, 12, 13 1 Point I: Concurrent Sentences Were Required for the Robbery and Attempted Robberies. A jury determined that Mr. Couser committed three attempted robberies based on evidence that he displayed a firearm to a group of at least four people, threatened them, and ordered them to get on the ground. These group-directed acts were all that constituted the attempted robbery crimes. The jury also determined that Mr. Couser committed a completed robbery based on evidence that, in addition to this conduct, he took the purse relinquished by one member of the group. There has never been any contention that Mr. Couser used a separate display of a firearm or a separate threat or act of force as part of the completed robbery. Thus, the act that wholly constituted the attempted robbery crimes also constituted two material elements of the robbery crime: the threat of force and the display of a firearm. Concurrent sentencing is required. (Penal Law § 70.25 [2].) Although the People cannot point to any distinct act constituting or even contributing to either of these two material elements of the completed robbery, the People attempt to draw support from one aspect of People v Ramirez (89 NY2d 444 [1996]). In Ramirez, two armed security officers were delivering money to a hotel when they were confronted by robbers and ordered to the ground at gunpoint. One of the officers (Donahue) complied, and his gun was taken without any noted resistance. The other officer (Bailey) moved toward a security booth; was shot 2 multiple times; attempted to fire back at the robbers; and eventually staggered to safety inside the hotel. (Id. at 448-49.) The robbers took Bailey’s gun, which he had dropped during the firefight. (Id.) Thus, unlike the present case, the force required to overcome Bailey’s resistance was distinct from the threats required to overcome Donahue’s resistance. Donahue apparently acquiesced to the initial commands and display of a firearm. But to overcome Bailey’s much greater resistance and to cause him to relinquish his gun, the robbers had to fire several gunshots at him. These clearly separate acts of force were the basis for the Court’s statement that “the entire tenor” of the robbery of Bailey was “distinct” from the robbery of Donahue. (Id. at 454.) The Court immediately explained that the robbery of Bailey required a “violent and repeated shooting” which “was a separate and distinct act” from the threats that were used to accomplish the robbery of Donahue. (Id.) The People invoke the Ramirez Court’s metaphorical “entire tenor” language, but they are unable to point to any separate act of force remotely comparable to the firefight against Bailey. Without concrete acts, the “entire tenor” phrase is just empty rhetoric. Here, unlike Bailey and Donahue, all four of the victims acquiesced to the initial group-directed threats, and no separate threat or act of force was needed to complete the taking from Ms. Belknap. Thus, if the crime had a “tenor” it was the tenor of a single, unified group robbery. 3 The present case is more aptly compared to another aspect of the Ramirez case. There, the robbers took not only guns belonging to the two officers, but also the payroll bags belonging to the Mount Vernon Money Center. The act of taking the payroll bags from the officers’ van was arguably separate from the act of taking Donahue’s weapon. At least, it appeared to occur in a slightly separate location. As the Court described the facts, Donahue was lying “on the pavement” outside the van when his gun was taken from his waistband, and he heard “rummaging . . . in the vehicle where he had left the payroll bags” (id. at 448-49). Nonetheless, the Court held that “all of the sentences relating to Donahue and the Money Center must run concurrently” (id. at 454) because the robbery of the Money Center was accomplished through the display of a firearm and threat of force that had subdued Donahue (id. at 453). The separate instances of taking the gun from the officer’s person and the bags from the vehicle were not sufficient to distinguish the crimes accomplished by means of the same display of a firearm and the same threat of force. Here, the taking of the purse, which had been relinquished and was lying on the ground, cannot distinguish the robbery from the attempted robberies, because all four of these crimes were accomplished through the same unified threat of force and display of a firearm. Thus, Ramirez shows that concurrent sentencing is required. 4 It bears noting that in the present case, although the crime against Brandon Fischer was charged as an attempted robbery, Ms. Belknap and Mr. Fischer both testified that Mr. Fischer’s money and cell phone were in Ms. Belknap’s purse when it was taken. (A.355, A.368-69, A.376.) Thus, the People might have charged a completed robbery with respect to Mr. Fischer as well. Had they done so, and had the jury credited this aspect of their testimony, concurrent sentencing would have been mandatory. In that case, the taking of Mr. Fischer’s property would have been accomplished through the group-directed threats and display of a firearm and the taking of Ms. Belknap’s purse. Thus, these two completed robbery crimes would be completely identical and would require concurrent sentences. (See People v Ramirez, 89 NY2d at 453 [“Despite the fact that the stolen property belonged to two different victims, it is the acts of the defendant that control.”]) It would be anomalous to suggest that consecutive sentencing is permitted simply because the People did not charge, and the jury did not find, this additional fact that Mr. Frazier’s property was taken. (In fact, the result would be that the People obtained greater cumulative sentencing exposure by charging robbery and attempted robbery rather than two robberies.) Yet that is the situation in this case. Of course, this logic can be extended. Had Ms. Belknap been carrying property for each of the victims and had she surrendered it all with her purse, then this case would consist of four completed robberies, all of which were 5 accomplished through the same indistinguishable acts. The mere fact that she did not relinquish her friends’ property cannot warrant consecutive sentencing. “It is the acts of the defendant that control.” (Id.) Because Mr. Couser took no additional acts against the attempted robbery victims other than the very acts that he took against the robbery victim, consecutive sentencing was unauthorized. Finally, the present case is not like People v Yong Yun Lee (92 NY2d 987 [1998]), where it was argued that two separate robberies and a burglary all shared a display of a firearm element (id. at 989). Here the crimes do not simply share an element in common, like three separate but overlapping circles in a Venn diagram. Instead, the threats and the display of a firearm that wholly constituted the attempted robberies were also material elements of the completed robbery. (See Penal Law § 70.25 [2].) Thus, the attempted robberies are entirely subsumed within the completed robbery. The proper diagram would be one circle, representing the acts constituting the attempted robberies, which is wholly subsumed within a larger circle, representing the acts constituting the completed robbery. Because the act constituting the attempted robberies is the very same act that constituted two material elements of the completed robbery, the plain text of Penal Law § 70.25 (2) mandates concurrent sentences. 6 Point II: Mr. Couser Received Ineffective Assistance of Counsel with Respect to His Decision to Enter an Alford Plea to a Class A-I Felony. A. Intentional Felony Murder Requires Concurrent Sentencing to the Same Degree as Standard Felony Murder. The Third Department has held that a sentence for intentional felony murder pursuant to Penal Law § 125.27 (1) (a) (vii) must run concurrent to the underlying predicate felony or felonies. (People v Cherry, 46 AD3d 1234, 1238 [3d Dept 2007]; People v Middleton, 32 AD3d 557, 557-58 [3d Dept 2006].) The People do not mention these decisions, but they would have this Court determine that their holding is incorrect. While the People appear to recognize that concurrent sentencing would be mandatory in a case that involves felony murder pursuant to Penal Law § 125.25 (3) (see Resp Br at 16), the People contend that intentional felony murder operates differently than felony murder. The text of the statutes and this Court’s controlling precedent show that the People are incorrect. First, the People describe Penal Law § 125.27 (1) (a) (vii) as containing an “in furtherance of” element, and thus, they argue that intentional felony murder is simply intentional murder accompanied by the intent to “further” a separate felony, such as robbery. (Resp Br at 16-17.) But this argument is not faithful to the text of subsection 125.27 (1) (a) (vii), which includes both an “in furtherance of” and a “while in the course of” requirement. The relevant text is as follows: 7 “the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of [another specified felony] or in the course of and in furtherance of immediate flight after committing or attempting to commit any such crime . . . .” (Penal Law § 125.27 [1] [a] [vii].) The “in the course of committing” language shows that intentional felony murder requires acts constituting commission of another felony (whether that other felony is a successful crime or an attempt crime). In this regard, the text is similar to the text of the felony murder statute. Both statutes rely on these same phrases – “in the course of” and “in furtherance of” – to describe the relationship between the killing and the underlying predicate felony. (See Penal Law § 125.25 [3].) Thus, a comparison of the statutory text indicates that intentional felony murder incorporates the acts constituting the underlying predicate felony in the same way that the standard felony murder does. To argue that the two felony murder statutes should be treated differently, the People rely on a quote, taken out of context, from the plurality opinion in People v Cahill (2 NY3d 14 [2003]). In Cahill, three judges recognized that, although Penal Law § 125.27 (1) (a) (vii) “borrows language from the felony murder statute” and “share[s] certain components,” there are differences between the two crimes. (People v Cahill, 2 NY3d at 67-68.) In particular, the intentional felony murder statute requires an intentional killing, and thus unlike standard 8 felony murder, it does not depend on the “legal fiction” whereby intent is transferred from the underlying predicate felony. (See People v Cahill, 2 NY3d at 67.) However, in Cahill, the purpose of noting this difference was actually to strengthen the extent to which intentional felony murder “require[s] a felony independent of the murder” and to narrow the list of adequate predicate crimes (People v Cahill, 2 NY3d at 65). Cahill indicates that Penal Law § 125.27 (1) (a) (vii) requires an underlying felony with its own separate objective or intent other than murder. (See id.; see also People v Lucas, 11 NY3d 218, 221-22 [2008].) Specifically, the Cahill plurality opined that where a burglary is committed by trespassing with the intent to commit the murder at issue, this is not a sufficiently independent felony. Aside from the intent to commit the murder, which both crimes share, the aggravating predicate act is merely trespassing, which is only a misdemeanor. (See People v Cahill, 2 NY3d at 65.) In contrast, the Court explained that “robbery” – and not merely the intent to further a robbery – “as a substantive crime . . . distinct from the murder . . . can be aptly characterized as an aggravating factor that fulfills Penal Law § 125.27 (1) (a) (vii).” (Id. at 65.) Nothing in Cahill suggests that an additional intent alone elevates an intentional killing to first degree murder. Instead, the language consistently suggests that Penal Law § 125.27 (1) (a) (vii) requires and incorporates the predicate crime to at least the same extent as Penal Law § 125.25 (3). 9 The People attempt to draw a great deal out of dicta in Cahill, but they ignore the remainder of this Court’s controlling jurisprudence regarding intentional felony murder. For one, based on Cahill, the People claim that the label “intentional felony murder” is an “inaccurate” characterization made by the defendant. (Resp Br at 17.) But this Court has consistently characterized the crime as a form of felony murder before and since Cahill. (See People v Lucas, 11 NY3d at 221 [“first degree felony murder”]; People v Danielson, 9 NY3d 342, 347 [2007] [“intentional felony murder”]; People v Taylor, 9 NY3d 129, 142 [2007] [“intentional felony murder”]; People v Miller, 6 NY3d 295, 301, 302, 303 [2006] [“intentional felony murder”]; People v Mateo, 2 NY3d 383, 402, 404-05 [2004] [“intentional first degree felony murder”]; People v Harris, 98 NY2d 452, 475-76 [2002] [“the felony-murder provision of Penal Law § 125.27 (1) (a) (vii)”; “first- degree felony murder”].) Moreover, these characterizations reflect the substantive similarity between the two forms of felony murder. Three years after Cahill, in a unanimous opinion authored by the same Judge, this Court held that Penal Law § 125.27 (1) (a) (vii) “generally tracks felony murder under Penal Law § 125.25 (3)” and that felony murder is a lesser-included crime of intentional felony murder. (People v Miller, 6 NY3d at 301.) The Court wrote: “The structure of the intentional felony murder statute leads us to conclude that felony murder is a lesser-included crime under 10 intentional felony murder.” (Id. at 303; see People v Vandyne, 63 AD3d 1681, 1683 [4th Dept 2009]; People v Cherry, 46 AD3d at 1238.) This holding in Miller is particularly significant, as it compels the conclusion that concurrent sentencing is mandatory for intentional felony murder and any predicate felony. Miller holds that, except in certain circumstances not at issue here,1 intentional felony murder encompasses felony murder, such that it is impossible to commit the former crime without committing the latter. As the Court put it: “Intentional felony murder is felony murder based on an intentional killing.” (People v Miller, 6 NY3d at 301 [emphasis added].) It follows that, contrary to the People’s contention, intentional felony murder must incorporate, as an element, the acts that constitute commission or attempted commission of the predicate felony. If intentional felony murder did not incorporate those acts to at least the same extent as standard felony murder does, then standard felony murder could not be a lesser included crime of intentional felony murder. And because intentional felony murder requires, as a necessary element, the acts constituting the predicate crime, concurrent sentencing is mandatory pursuant to the second prong 1 The Court recognized that the intentional felony murder statute is broader than felony murder statute in at least one way. The former statute includes a clause making it first degree murder to intentionally kill in the course of flight from an attempted murder. “Thus, a defendant who tries unsuccessfully to kill victim A and, in flight, intentionally kills victim B would be guilty of first degree intentional felony murder but not second degree felony murder.” (People v Miller, 6 NY3d at 302.) However, the Court expressly held that where intentional felony murder is predicated on robbery or burglary, it encompasses second degree felony murder. (Id. at 303.) 11 of Penal Law § 70.25 (2). (See People v Parks, 95 NY2d 811, 814-15 [2000].) Thus, the holding in Miller is dispositive of the sentencing issue here. Finally, as the foregoing discussion should make clear, the People’s attempt to compare intentional felony murder to burglary is creative, but lacking in support. The text of the burglary statutes require only trespassing “with intent to commit a crime therein.” (E.g. Penal Law § 140.20.) The text of Penal Law § 125.27 (1) (a) (vii), like the text of Penal Law § 125.25 (3), requires a killing “while . . . in the course of committing” another crime or while in flight “after committing” such crime. The text and “structure” of the intentional felony murder statute tracks the felony murder statute, and the former crime encompasses the latter. (See People v Miller, 6 NY3d at 303.) Thus, there is no support for treating intentional felony murder like burglary, and doing so now would make a mess of this Court’s interpretation of the intentional felony murder statute. (See id. [holding that intentional felony murder includes felony murder]; People v Cahill, 2 NY3d at 65 [holding that intentional felony murder requires commission of a felony with an independent objective].) In sum, the sentencing issue here can only be resolved in one way. Based on the text of Penal Law § 125.27 (1) (a) (vii) and on this Court’s holding in Miller, the sentence for attempted intentional felony murder had to be concurrent to the sentence on the predicate felonies that serve as an essential element. 12 B. Counsel’s Assessment of the Sentencing Exposure Constitutes Ineffective Assistance at the Plea Stage. As a fallback position, the People argue that we should not fault defense counsel for failing to recognize that concurrent sentencing is mandatory. This discounts both the strength and clarity of the precedent at the time of the sentencing advice and the significance of the issue in the context of the plea decision. In 2010, all of the relevant authority indicated that a concurrent sentence was mandatory. The sentencing case law regarding felony murder was well established. (See e.g. People v Parks, 95 NY2d 811 [2000].) Moreover, the Court’s decision in People v Miller – equating the structure of the two forms of felony murder, and holding that intentional felony murder includes felony murder (6 NY3d at 301-03) – was issued in 2006. The Third Department’s decisions in Cherry and Middleton, which expressly hold that concurrent sentencing is required, were issued in 2006 and 2007. And in 2007, this Court had also issued a decision requiring concurrent sentencing for Penal Law § 125.27 (1) (a) (viii), an analogous first degree murder provision. (People v Rosas, 8 NY3d 493 [2007].) The People cite no contrary authority that would have suggested that consecutive sentencing was permissible. Thus, all of the existing authority at the time indicated that concurrent sentencing was mandatory. 13 The only support for the People’s position is that, in this very case, years after the sentencing advice at issue, the Appellate Division held that consecutive sentencing would have been authorized “because the shooting of the male victim was an act separate and distinct” from the robbery and attempted robbery crimes. (Resp Br at 18 [citing A.10].) This erroneous decision could hardly have been predicted at the time of sentencing or even at the time of this appeal. It is a plain misapplication of Penal Law § 70.25 (2). It fails to accord any attention to the structure of Penal Law § 125.27 (1) (a) (vii), and it completely disregards the prior decisions of the Third Department and this Court concerning intentional felony murder. The mere prospect that a court might misapply the law – an outside risk in every case – does not warrant counsel’s unqualified advice that Mr. Couser “would not know” whether he might receive a concurrent or consecutive sentence after trial. Based on the existing precedent in 2010, defense counsel should have been aware of the argument for concurrent sentencing, and if he had any lingering doubts about its merits, then counsel should have sought guidance from the court prior to advising his client regarding the benefits of the plea. In People v Turner (5 NY3d 476 [2005]), this Court recognized that the law supporting a statute of limitations argument that defense counsel had failed to make “was not definitively settled until 2003,” years after Turner’s trial (1999) and direct appeal (2000-01), 14 but this Court still found counsel ineffective for failing to raise the issue. (See People v Turner, 5 NY3d at 483 [“A reasonable defense lawyer at the time of defendant’s trial might have doubted that the statute of limitations argument was a clear winner--but no reasonable defense lawyer could have found it so weak as to be not worth raising”].)2 Here, the enormous consequences of Mr. Couser’s Alford plea – a Class A-I felony conviction and a life sentence – imposed upon counsel a solemn obligation to ensure that he was giving accurate and complete sentencing advice before encouraging the plea. Faced with this responsibility, counsel should have been aware that concurrent sentencing was mandatory under Penal Law § 70.25 (2). Counsel certainly should have located the Third Department’s decisions in Cherry and Middleton, as they were directly on point. He should have been aware of the well-established principles regarding felony murder generally, and he should have been aware of this Court’s holding in Miller, which equates the structure of intentional felony murder and regular felony murder, thus entailing that concurrent sentencing is mandatory. Even if defense counsel had any doubts about how this 2 This case is like Turner insofar as it involves a single error, but it is unlike many of the single-error cases decided since Turner. This case does not involve just one decision among the many decisions that might impact the outcome at an ongoing trial. It involves the fundamental decision of whether or not to go to trial in the first place. It is well established that erroneous or inadequate advice regarding the comparative advantages of a plea and risks of trial is sufficient in itself to constitute ineffective assistance with respect to a plea decision. (See App Br at 27-28 and cases cited therein.) 15 precedent should be applied here, he should have sought guidance before advising Mr. Couser to enter an Alford plea, accept a life sentence, and forego a chance for an acquittal. Instead, the record contains no indication that counsel had even considered the application of Penal Law § 70.25 (2) in this case. Defense counsel failed to address consecutive and concurrent sentencing at the first sentencing after trial (A.460-62), leaving the People’s lengthy argument for consecutive sentencing completely unopposed (A.454-60). Likewise, with respect to the plea at issue here, defense counsel’s simple statement reveals that he saw consecutive sentencing as an issue that would be wholly up the court’s discretion after trial and, thus, a risk that could not be known ahead of time. This is not effective assistance or meaningful representation with respect to the decision of whether to enter an Alford plea to attempted intentional felony murder, a crime that requires a concurrent sentence. Mr. Couser’s only incentive to enter such a plea was to obtain a sentencing benefit, and thus, counsel was obliged to provide accurate and complete advice about whether the purported sentencing benefit was real. 16 Point III: The Alford Plea Colloquy was Inadequate. The People correctly note that “Alford stands at the outer reaches of [this Court’s] settled doctrine that if a defendant’s recitation of the facts negates an essential element of the crime, raising substantial doubt as to guilt, the trial court must inquire further to ensure that defendant’s guilty plea is both knowing and voluntary.” (Silmon v Travis, 95 NY2d 470 474 n 1 [2000], citing People v Lopez, 71 NY2d 662, 666 [1988].) But this means that Alford pleas most clearly trigger the need for robust inquiry, not that inquiry can be disposed of because it is already expected that the defendant will not admit the crime. (See Silmon, 95 NY2d at 474 n 1, 475; see also People v Hill, 16 NY3d 811, 814 [2011] [“there is no such thing as a ‘limited’ Alford colloquy”].) Accordingly, the Supreme Court and this Court have both recognized that there are at least two separate requirements for an adequate Alford plea: “‘An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime . . . when . . . [1] a defendant intelligently concludes that his interests require entry of a guilty plea and [2] the record before the judge contains strong evidence of actual guilt.’” (People v Miller, 91 NY2d 372, 377 [1998], quoting North Carolina v Alford, 400 US at 37.) Put another way: 17 “In New York, such a plea is allowed only when, as in Alford itself, [1] it is the product of a voluntary and rational choice, and [2] the record before the court contains strong evidence of actual guilt.” (Silmon v Travis, 95 NY2d at 475; see People v Hill, 16 NY3d at 814; People v Richardson, ___AD3d___, 2015 NY Slip Op 07142, *2 [4th Dept 2015] [recognizing that this is “axiomatic” and that “both conditions” must be met].) The “rational choice” requirement encompasses the requirement that the defendant has intelligently concluded that the plea is in his best interest. The People attempt to collapse the two requirements into one, arguing that strong evidence of guilt shows that the defendant’s choice is voluntary and rational: “Where the defendant seeks to enter an Alford plea, the trial court must ensure that there is ‘strong evidence of guilt’ so that the defendant’s decision to plead guilty notwithstanding the claim of innocence is a voluntary and rational choice.” (Resp Br at 19.) Thus, the People argue that the court’s obligations were wholly satisfied by the attorneys’ discussion of the expected trial evidence. (Id. at 19-20.) The People’s position cannot be correct. While strong evidence of guilt may be a necessary condition for a voluntary and rational Alford plea, it is hardly a sufficient one. If it were, then a defendant faced with a strong case could “rationally” enter an Alford plea based on a promise that his sentence would be much greater than what he would receive after trial. Or the defendant could 18 “voluntarily” enter an Alford plea while delusional, under the influence of psychotropic drugs, or for that matter, with a gun placed to his head. So long as the record contains strong evidence of guilt, the attorneys and the court could say or do anything to induce an Alford plea and be done with the case. That is absurd. As the law recognizes, an Alford plea cannot be said to be rational unless it carries some benefit for the defendant, typically a sentencing benefit. The choice facing the defendant is not, “Am I likely to be convicted at trial?” but, “Will things be better or worse for me if I go to trial?” If the sentencing consequences of pleading guilty are practically equivalent to those following a conviction at trial, then it may be irrational to waive even a small chance of acquittal at trial. Thus, without inquiring into the perceived benefit of the plea as compared to a conviction at trial, there is no way for the court to satisfy its duty to ensure that “the guilty plea truly ‘represents a voluntary and intelligent choice among the alternative courses of action open to the defendant’” (People v Miller, 91 NY2d 372, 377 [1998], quoting North Carolina v Alford, 400 US 25, 31 [1970].) Where Alford pleas have been properly accepted, the court has developed a record that shows the defendant is making a rational choice, typically one that secures some indisputable sentencing advantage. (See e.g. North Carolina v Alford, 400 US at 31 [at the time of the plea, Alford “reaffirmed his desire to plead guilty to avoid a possible death sentence and to limit the penalty to the 30-year 19 maximum provided for second-degree murder”]; People v Friedman, 39 NY2d 463, 465 [1976] [through direct inquiry with defendant, trial court confirmed that he was pleading to a lesser charge in order to secure a “considerably” more lenient sentence].) In contrast, in a unanimous decision, this Court held that an Alford plea colloquy was inadequate, although there was sufficiently strong evidence of guilt, because the court failed to make sure that the defendant was making a rational choice to secure a real benefit: “[The defendant] was not, for example, asked if he wished to plead guilty to first-degree manslaughter to avoid the risk of conviction upon a trial of the more serious crime of second-degree murder. It is not enough that defendant made such concessions from which such a choice might be inferred, especially since the colloquy shows that he may have thought that his knowledge that the switchblade knife ‘could have caused damage’ was an admission of guilt. On these facts, we cannot say that defendant’s guilty plea was the ‘product of a voluntary and rational choice.’” (People v Hill, 16 NY3d at 814 [citations omitted]; see People v Serrano, 15 NY2d 304, 308, 310 [1965] [Alford-type plea was inadequate where the court failed to inquire into the defendant’s reasons for wanting to enter the plea, such as the prospect of avoiding a more serious conviction at trial].) On this appeal, Mr. Couser does not concede that the evidence of guilt was overwhelming or even particularly strong. No matter how the People characterize 20 that evidence and no matter what defense counsel represented to the court about his conversations with the jury, the indisputable fact is that, at a trial, the People’s evidence did not persuade the jury that Mr. Couser had attempted to commit murder. This is not hard to understand. The People’s own firearms examiner testified that the trigger of the gun required only 1.75 pounds of force to fire, just a sixth of the 10.5 pounds of force required to fire the other pistol in evidence. That is a remarkably sensitive trigger, and in untrained hands, it would be very likely to cause accidental discharge.3 Moreover, the circumstances of a fully loaded gun, a single ineffective shot at close range, and immediate, unprompted flight do not compel an inference of a purposive shooting with the intent to kill. Nonetheless, the basis for appeal here is not that the evidence of guilt was inadequate to permit an Alford plea. Regardless of the evidence, further inquiry was needed. (See People v Hill, 16 NY3d at 814; People v Serrano, 15 NY2d at 308, 310.) 3 “[A] trigger below 4 lbs can easily lead to accidental discharges under conditions of stress. Remember fine motor skills degrade rapidly and not only does the shooter’s ability to shoot accurately suffer but because of this a 4 lb trigger will feel like a 2 lb trigger when you are truly in fear for your life. Add into this sweaty hands, rain and/or cold, and possibly gloves and you begin to see why finely tuned match triggers of 3 lbs or less have no place on a serious fighting tool.” Vickers Tactical, Trigger Pull Weight for a Handgun, http://vickerstactical.com/tactical-tips/trigger-pull-weight/ (last visited October 27, 2015). “[W]hen you start dealing with triggers lighter than 4 pounds in the hands of people who are incapable of keeping their fingers off the trigger, you get negligent discharges.” Handguns Magazine, What’s the Right Trigger Pull Weight for a Carry Gun?, http://www.handgunsmag.com/blogs/carry-on/whats-the-right-trigger-pull-weight-for-a-carry- gun/#ixzz3pnmXbucZ (last visited October 27, 2015). 21 Here, the court made almost no inquiry of Mr. Couser, not even the “‘limited’ Alford colloquy” that this Court rejected in Hill (16 NY3d at 814). Mr. Couser was not asked to allocute to any of the facts, even those that he might have been prepared to admit, and he was not asked even a single basic question to ensure that he was capable of making a voluntary decision, e.g., whether he understood what was going on, whether he was suffering from illness or under the influence of drugs, whether he had time to discuss the decision with counsel and was satisfied with counsel’s advice, and whether anyone had made any other threats or promises to induce his plea. He was not asked if he understood that he would be waiving his fundamental constitutional trial rights. (See Boykin v Alabama, 395 US 238, 242-44 [1969].) And bringing this case directly in line with Hill, he was not asked if he understood the supposed benefits of the plea, and if those supposed benefits were his reason for entering the plea. (See People v Hill, 16 NY3d at 814.) It appears that the court would have even done away with the formal entry of a plea by Mr. Couser, the very act needed to express consent to entry of judgment. (A.500-01.) To the extent that the record contains indications that Mr. Couser’s choice was intended to secure a sentencing benefit, this comes out only through counsel’s assurances that Mr. Couser had been advised regarding the sentence exposure at trial. (A.489-90.) As a general matter, assurances of counsel do not satisfy the 22 court’s obligation to inquire of the defendant. (See People v Mox, 20 NY3d 936, 938-39 [2012] [holding that defense counsel’s assurances that defendant would waive a defense were inadequate]; People v Hill, 16 NY3d at 814 [criticizing the failure to ask the defendant about the motive for the plea]; People v Serrano, 15 NY2d at 310 [“the court should take all precautions to assure that the defendant is aware of what he is doing”] [emphasis added].) Moreover, in this case, counsel’s assurances were based around the unqualified and faulty premise that consecutive sentencing would have been available after trial. (See supra at Point II.A; App Br at 30-33.) Thus, counsel’s assessment of the sentencing exposure, which was at least overly simplistic, triggered the need for further direct inquiry to ensure that Mr. Couser properly understood the purported benefit of the plea. Even if trial counsel could not be expected to see that the law mandated concurrent sentencing, the same cannot be said of the court. The court is obliged to apply the law correctly, and its application of sentencing law is not reviewed under the forgiving constitutional standards for effective or meaningful representation. Even if the court could have supposed that there was an open legal question regarding the availability of consecutive sentencing, counsel’s statement that Mr. Couser was pleading guilty to avoid the risk of a consecutive sentence still triggered the need for further inquiry to ensure that this was an intelligent and rational choice. Mr. Couser’s choice could not be rational unless he understood 23 that there was, at the very least, a strong argument that the law made concurrent sentencing mandatory here. Had he been so advised, perhaps Mr. Couser could have rationally decided to lock up a concurrent sentence through a plea, and not risk the possibility of an erroneous legal ruling in his case, but he could not make such a choice intelligently without being aware that this legal issue existed. In this regard, the need for inquiry is akin to cases like Mox where the court must ensure that the defendant understands that he is waiving a potential defense, whether or not it can be said that the defense would ultimately prevail. Here, the record contains no indications that Mr. Couser had any understanding that a concurrent sentence, which was being used to induce his plea, was legally mandated. Suppose that a car salesman promises that if you make a down payment and sign a purchase agreement now, he will make you a “special deal” by covering the cost of certain modifications to the car. And suppose you later learn that the dealer had a legal obligation to make those modifications as part of a recall. If your decision to commit to the purchase was induced by that promise, it could hardly be said to be knowing, intelligent, and rational choice. Even if this salesperson was unaware or uncertain of the obligation, you have traded off your opportunity to find a better deal in exchange for a “benefit” that you would have been entitled to in any case. 24 Here, the court (and court-appointed counsel) sold Mr. Couser on a similarly empty deal. He was induced to plead based on the offer of a concurrent sentence, but under Penal Law § 70.25 (2), the “benefit” of concurrency was legally mandated whether he pled or went to trial. Moreover, given concurrency, the only other “benefit” – a potential release date of 15 years rather than 25 years – was of no value. At the time of the plea, and even now after a partial correction of the sentence, Mr. Couser was already serving a determinate sentence that ran far longer than any of these potential release dates.4 Thus, the record contains no assurance that Mr. Couser “intelligently conclude[d] that his interests require[d] entry of a guilty plea” (People v Miller, 91 NY2d at 377; North Carolina v Alford, 400 US at 37) or that the plea was “the product of a voluntary and rational choice” (Silmon v Travis, 95 NY2d at 475; People v Hill, 16 NY3d at 814). Therefore, Mr. Couser’s Alford plea must be vacated. 4 A 15-year potential release date, rather than 25, will arguably be a benefit when Mr. Couser’s determinate sentence is fully corrected, so that it totals 18 years. But that cannot make his choice retrospectively voluntary, intelligent, and rational. Whether to plead guilty in exchange for that benefit is a much different choice than the one that Mr. Couser made, and there is no basis to conclude that he would make that choice in that new situation. (See People v Rowland, 8 NY3d 342, 345 [2007].) 25 CONCLUSION For the reasons given in Point One, Mr. Couser’s sentence on Count Two must be modified to run concurrent with the sentences on Counts Five, Six, and Seven. For the reasons given in Points Two and Three, Mr. Couser’s Alford plea to Count One must be vacated. Dated: October 30, 2015 Respectfully submitted, TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant _________________________ BY: JAMES A. HOBBS Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4213