The People, Respondent,v.Terrance Monk, Appellant.BriefN.Y.Mar 21, 2013( 1 ( ) ~ ) ORIGINAL To be argued by SCOTT B.TULMAN, ESQ. (Counsel requests 10 minutes) COURT OF ApPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, . -against- TERRANCE MONK, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT SCOTT B. TULMAN, ESQ. SUSAN G. PAPANO, ESQ. ON THE BRIEF SCOTT B. TULMAN, ESQ. Attorney for Defendant-Appellant Scott B. Tulman & Associates, PLLC 369 Lexington Avenue, 15th Floor New York, New York 10017 Tel.: (212) 661-3080 Fax: (212) 867-1914 November 21,2011 r. '. , :-1 () ~ ) ',- ) TABLE OF CONTENTS TABLE OF AUTHORlTIES ................................................................................... ii-iv PRELIMINARY STATEMENT ................................................................................. 1 QUESTIONS PRESENTED ....................................................................................... 4 SUMMARY OF ARGUMENT .................................................................................. 6 STATEMENT OF FACTS ......................................................................................... 9 A. Appellant's Arrest and Indictment ......................................................... 9 B. Appellant's Prior Criminal History ........................................................ 9 C. Plea Negotiations and the Guilty Plea .......................... ' ........................ 10 D. The Motion to Withdraw the Guilty Plea .............................................. 15 E. The Sentence .......................................................................................... 17 F. Th~ SecoIl.d I?epartment's Opinion .......................... : .... : ...... : ......... : ....... 18 ARGUMENT ..... ~ ....................................................................................................... 20 1. THE TRIAL COURT'S FAILURE TO ADVISE APPELLANT DURlNG THE GUILTY PLEA ALLOCUTION . OF THE MAXIMUM PERMISSIBLE TERM OF INCARCERATION HE FACED AS THE RESULT OF POST RELEASE SUPERVISION REQUIRES REVERSAL OF HIS CONVICTION BECAUSE THIS POTENTIAL EFFECT OF POST RELEASE SUPERVISION IS A DIRECT PENAL CONSEQUENCE OF THE GUILTY PLEA AND APPELLANT TIMELY MOVED TO WITHDRAW HIS GUILTY PLEA ON THIS GROUND ....................................................... 20 II. THE TRIAL COURT SHOULD HAVE GRANTED APPELLANT'S TIMELY MOTION TO WITHDRAW HIS GUILTY PLEA PREMISED ON APPELLANT'S CLAIMED LACK OF UNDERSTANDING AS TO THE POST-RELEASE SUPERVISION COMPONENT OF HIS SENTENCE OR, AT A MINIMUM, AFFORDED HIM A MEANINGFUL OPPORTUNITY TO BE HEARD ............................................................. 30 CONCLUSION ...... '" ................................................................................................. 38 1 TABLE OF AUTHORITIES Boykin v. Alabama, 395 U.S. 238 (1969) ............................................................................. 23, 24 Cuthrell v. Direct, Patuxent Ins., 475 F.2d 1364 (4th Cir. 1973), cert denied 414 U.S. 1005 (1973) ............. 24 F oucha v. Lousiana, :- I 504 U.S. 71 (1992) ........... · .......................................................................... 34 Padilla v. Kentucky, 130 S.Ct. 1473 (2010) .......................................................................... 31, 33 (I People v. Achaibar, ..... -49 A.D3d 389 {l-st Dept. 2008) ...... -......... ;; ..... ;.; .. ; ........... ;; ........... ; ............ 27 - People v. Behlin, 33 A.D.3d 390 (1 st Dept. 2006), Iv. denied, 8 N.Y.3d 843 (2007) ........... 18 People v. Boyd, 12 N.Y.3d 390 (2009) ................................................................................ 28 ~ ) People v. Catu, 4 N.Y.3d 242 (2005) ........................................................................... passim People v. Ellsworth, 14 N.Y.3d 546 (2010) ................................................................................ 27 People v. Ford, 86 N.Y.2d 397 (1995) ............................................................................ 7,23 C.I People v. Gravino, 14 N.Y.3d 546 (2010) ...................................................................... 8, 28, 32 People v. Harnett, 16 N.Y.3d 200 (2011) ................................................................ 8,24,25,32 11 : I r , : ~) People v. Harris, 61 N.Y.2d 9 (1983) .................................................................................... 22 People v. Laster, 38 A.D.3d 242 (1 st Dept. 2007), Iv. denied, 9 N.Y.3d 846 (2007) ............ 19 People v. Latham, 90 N.Y2d 795 (1997) ................................................................................. 33 People v. Louree, 8 N.Y.3d 541 (2007) ..................................................................................... 33 People v. Lynn, 28 N.Y.2d 196 (1971) ................................................................................ 20 People v. Mattison, 67 N.Y.2d 462 (1986) ............................................................................... 36 People-Y.Monk; -- ___ H_ - UH ------------------ ---- -- ----- --- 50 A.D.3d 925 (2d Dept. 2008) ..................................................... 2, 3, 9, 19 People v. Muriqi, 9 A.D.3d 743 (3 rd Dept. 2004), Iv denied, 3 N.Y.3d 679 (2004) .............. 19 People v. Nixon, c) 21 N.Y.2d 338 (1967) ...................................................................... 8, 21, 31 People v. Pearson, 55 A.D.3d 314 (1stDept. 2008) ................................................................. 27 People v. Weekes, 28 A.D.3d 499 (2d Dept. 2006) .................................................................. 26 People v. Van Deusen, '~, ) 7 N.Y.3d 744 (2006) .................................................................................. 35 West v. Rundle, 428 Pa. 102 (1968) ..................................................................................... 23 111 Statutes Criminal Procedure Law § 220.60 ............................................................ 2, 16 Penal Law §70.45 ............................................................................ 2, 6,10,25 Penal Law § 70.45(5)(d) .................................................... : ............................ 4 (- I Penal Law §§ 110.00, 160.15(3» .................................................................... 1 ( ) '~ ) IV ~) C) ~ ) , I COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, -against- TERRANCE MONK, Defendant-Appellant. --------------------------------------------------------------)( PRELIMINARY STATEMENT By permission of the Honorable Susan Phillips Read, Associate Judge of the Court of Appeals, granted on August 5, 2011 , Defendant-Appellant Terrance Monk ("Monk") appeals the Decision and Order of the Appellate Division, Second Department, entered on March 15,2011, affirming Monk's conviction and sentence, following his guilty plea to the charge of Attempted Robbery in the First Degree (Penal Law §§ 110.00, 160.15(3)). (A. 3, 4_8),1 Monk was sentenced, as a second violent felony offender, to a determinate term of ten years, to be followed by a mandatory five year term 1 Numerical references preceded by "A" refer to the Appendix. of supervised release, and a mandatory surcharge. See, People v. Monk, 83 (, A.D.3d 35 (2d Dept. 2011), leave granted, 17 N.Y.3d 819 (2011)(A. 3-8). In its decision, the Second Department affIrmed an Order of the " ) Westchester County Court (Bellantoni, J.) dated August 15, 2007, denying Monk's timely fIled motion pursuant to CPL § 220.60 to withdraw his guilty plea. (A. 9). Among other grounds, the Trial Court rejected Monk's contention in his motion that the trial court committed a Catu violation (See, People v. Catu, 4 N.Y.3d 242 (2005)) by failing to advise him of the :1 possibility of additional re-incarceration for up to five years, separate and " .. __ ._.- .. _--"-- --" ._-- .. --. . ...... __ ... ---.. - . -" -~-. -."~ .. - -_ ... _ ... _----_.-----_.- _. ----_._- " .... - .... _.. -"-- - . __ .. ---,._ . . - .... -.-- ..... -."--~--.. ---.. --- _.-- ---_. __ ... apart from the promised ten year determinate sentence, for violation of the mandatory fIve year post- release supervision term imposed pursuant to §70.45 of the Penal Law. (A. 15-16). u Finding re-incarceration pursuant to Penal Law §70.45(5)(d) to be a "collateral" consequence of Monk's conviction, the Second Department held :- ) the trial court was not required during the plea allocation to make a record I '- establishing that this potential fIve year additional term of penal incarceration was known to Monk in order for Monk's plea to be knowingly, voluntarily and intelligently made. Finding no defect in the allocution, the Court did not address the issues of whether Monk was, in fact, aware of this I I i i ~ penal consequence and whether this collateral consequence could 2 " ) independently support a claim of involuntariness in the context of a timely motion to withdraw a guilty plea. Monk presently is incarcerated serving his sentence with a concurrent sentence imposed on November 15,2005, following Monk's conviction, after a jury trial, of Robbery in the First Degree and related offenses in the County Court, Rockland County. Monk's Rockland County conviction was affirmed on April 15, 2008. See, People v. Monk, 50 A.D.3d 925 (2d Dept. 2008). 3 QUESTIONS PRESENTED r, 1. Whether the maximum term of total incarceration resulting from the effect of post-release supervision on a determinate sentence is a direct consequence of a criminal conviction of which a defendant must be made aware during a guilty plea allocution as a matter of Due Process? If the answer is in the affirmative, the Second Department's Decision and Order must be reversed and the case remanded to the trial court for trial " I or re-pleading. The record establishes that the Trial Court did not make Appellant aware of the effect of postrelease supervision on the true potential length of his term of incarceration, and only advised Appellant of the fact and duration of the post-release supervision-period. The possibility of re- incarceration for up to five additional years pursuant to Penal Law § \.. ) 70.45(5)(d) was a direct, immediate and automatic penal consequence known at the time of the guilty plea. If, and only if, the answer to the first question is in the negative, the Court must reach the second question presented below. 2. Whether the potential effect of a violation of postrelease supervision on the length of a defendant's term of incarceration is a significant consequence of such importance that claimed ignorance of this 4 fact can, under appropriate circumstances, support a timely made motion to withdraw a guilty plea? If the answer is in the affirmative, Monk's case must be reversed, and the case remanded to the Trial Court for determination of Monk's timely motion to withdraw his guilty plea on the merits. The Appellate Division found that the trial court committed no error in its allocution and affirmed the conviction. It did not determine whether claimed ignorance of the effect of postrelease supervision in a timely made motion to withdraw a guilty plea -- - -could-support -an involuntarines s claim.- - - We submit the Trial Court abused its discretion in failing to make factual findings as to Monk's understanding of the effect of post release supervision on his ten year sentence, and its impact, if any, on his decision to plead guilty. 5 SUMMARY OF ARGUMENT In this appeal, Monk challenges his conviction by way of guilty plea. He contends the plea allocution was defective and his guilty plea involuntary. For all of the reasons set forth below, we respectfully submit that the trial judge's failure to inform Monk at the time of his guilty plea of the direct, immediate and automatic effect the mandated term of five year post-release supervision had on the maximum permissible term of incarceration under his ten year determinate sentence was a Catu violation that requires reversal of his conviction and remand to the trial court for trial or repleading. People v. Catu, 4 N.Y.3d 242 (2005). Post-release supervision is mandatorily imposed pursuant to Penal ( ) Law § 70.45 and it increases the maximum permissible term of incarceration well beyond the underlying determinate sentence. The increased sentencing exposure is a direct consequence of a gUilty plea to a violent felony offense and the range of exposure can be determined at the time of the guilty plea. Accordingly, since the exposure to an increased term of incarceration was a l) direct penal consequence, the trial court was duty bound, as a matter of due process, to ensure that a record was made during the plea allocution that Monk was aware of the fact, length and effect of post-release supervision on 6 his determinate sentence before accepting his guilty plea. The failure to do (, so made Monk's plea voidable upon timely application. Since the record establishes that the trial judge did not properly inform Appellant of the post-release supervision component of his sentence, it abused its discretion in summarily denying Monk's prompt motion to withdraw his plea on this ground. Harmless error analysis is inapplicable to Catu and other due process violations where the trial court fails to inform the defendant of the direct consequences of the guilty plea. Assuming arguendo, that the trial court's omission did not constitute a Catu or other due process violation, reversal is required nonetheless because , , the trial court abused its discretion in summarily denying Monk's motion. Since the trial court failed to all 0 cute Monk as to his understanding of the effect of postrelease supervision on his determinate sentence, it could not deny his motion until it made an appropriate finding that Monk's claimed C.) ignorance of this significant consequence did not impact on his decision to plead guilty. The trial and appellate courts below denied Monk relief after finding II that the possibility ofre-incarceration by the Board of Parole was a "collateral consequence" that could not support a motion to withdraw a guilty plea as involuntarily made. The direct/collateral consequences 7 I I, : ) ~ ) () , J \-.' ( J '-/ J dichotomy, however, is not the exclusive test for determining involuntariness claims predicated on a lack of proper understanding of the consequences of the plea. Recent deCisions of this Court leave no doubt that a timely motion to withdraw a guilty plea can be premised on ignorance of a significant collateral consequence if an individualized showing is made that the defendant would not have so pleaded had he been aware of the consequence. See, People v. Gravino, 14 N.Y.3d 546,559 (2010), People v. Harnett, 16 N.Y.3d 200,207 (2011). To the extent that People v. Ford, 86 N.Y.2d 397 (1995) has been relied upon by the lower courts of this state, and the Second Department in this case, for the proposition that the direct/collateral consequences dichotomy is the exclusive test for assessing the propriety of the trial court's inquiry during a guilty plea allocution, this reliance has been misplaced in view of the decades-old flexible standard for evaluating guilty plea allocutions. See, People v. Nixon, 21 N.Y.2d 338 (1967). Since the courts below relied exclusively on the traditional direct/collateral consequences test in making their determinations, without reaching the issue whether Appellant's claimed ignorance of the effect of postrelease supervision impacted on the voluntariness of his guilty plea, 8 " : I ( , , ; reversal and remand is mandated to consider Appellant's motion to withdraw on the merits. STATEMENT OF FACTS A. Monk's Arrest and Indictment. On March 21,2004, a knifepoint robbery was committed in Westchester County, New York. (A. 5). The following day, a home invasion robbery was committed in Rockland County, New York. As a result of police investigation, including identification procedures from photo ___ arrays,Appellantwas linked to_ both Tobbedes. Seized _unlawfully in his ________________________ _ dormitory room at Buffalo State College in the early morning hours on April 15, 2004, Monk was thereafter separately indicted in Westchester and Rockland Counties with robbery in the first degree and related charges. See, People v. Monk, 50 A.D.3d 925 (2d Dept. 2008).2 B. Monk's Prior Criminal History. Monk had a violent felony conviction in Rockland County in 1997, for burglary in the second degree, for which he had received an indeterminate sentence of three to six years. (A. 108). Post-release supervision did not exist at that time. It was in 1998 that the Legislature 2 In People v. Monk, 50 A.D3d 925,854 N.Y.S.2d 784 (2d Dept.2008), the Second Department held that Monk had been unlawfully arrested but suppression of his subsequent confession as the tainted fruit of the unlawful arrest was not required because there was sufficient attenuation between the arrest and his subsequent confession. 9 r, 'I ( ) : ) enacted the determinate sentencing scheme, commonly known as J enna' s law, with mandated periods of post-release supervision that carried the potential for additional terms of incarceration beyond the initial term imposed. (See, Penal Law §70.45, Added by L. 1998, Ch. 1, § 15 applicable to offenses committed on or after September 1, 1998). C. Plea Negotiations and the Guilty Plea On April 14, 2005, as part of ongoing plea discussions, Monk's counsel proposed to have Monk plead guilty to attempted robbery in the first degree in exchange for a ten year determinate sentence, as a prior violent felony offender, provided that the sentence would be served concurrently with a ten-year sentence to be imposed upon Monk's anticipated guilty plea to the pending robbery case in Rockland County. (A. 99). On April 15, 2005, Monk's proposal was accepted and he entered a plea of guilty to attempted robbery in the first degree in satisfaction of the full indictment. Prior to the guilty plea, the following ensued: THE COURT: MS. O'CONNOR: Good Afternoon. Judge, late yesterday defendant requested to see whether or not a ten- year sentence here could be run concurrent with ten years in Rockland. We have made several phone calls to try and accommodate the defendant 10 / ) ,.- " () THE COURT: APPELLANT: THE COURT: and his attorney on that. We spoke to Chief Assistant District Attorney Lou Valvo, not about two or three hours ago. They would not have any opposition to ten years to run concurrent on a plea in their county. Mr. Monk, have you had an opportunity to discuss what was just said with your attorney? Yes. Okay. At this time is it then your intention to plead guilty to the crime I believe the indictment will be amended, but will be amended to --- -------- ---------- - ....-------- ..... -.-....... --- ---- -- -. felled thefifst-counrof attempted- APPELLANT: CA. 99-100). robbery in the first degree, a class C violent felony with the promise of a ten-year determinant sentence concurrent with the one that will be imposed in Rockland County? Yes. The Court then informed Monk that he was to be asked a series of questions by the Assistant District Attorney so that the Court could determine whether his guilty plea was being made knowingly, intelligently and voluntarily. CA. 100). Immediately prior to be placed under oath, the Court interj ected on the record to clarify its understanding of the sentence to be imposed: 11 () (~ ) THE ADA: THE COURT: THE ADA: THE COURT: THE ADA: THE COURT: I believe Mr. Monk needs to be placed under oath first. Steve, please. Just, the ten year sentence will be as a predicate felony, correct? Correct. You'll be filing a predicate statement upon .. Yes, I'll get to that during voir dire. Thank you. COURT CLERK: Mr. Monk, please raise your hand. (A. 102-103). The questioning by the Assistant District Attorney then began. During the questioning, Monk stated that he had an opportunity to discuss his case with his attorney and that he was satisfied with his attorney. Monk acknowledged his understanding that he was giving up his right to a jury trial, his right to present witnesses, and his right to testify on his own behalf. He further stated on the record that he was making his plea voluntarily and that no one had threatened, coerced or forced him to plead guilty . (A. 104-106). After this line of questioning, the Assistant District Attorney turned to Monk's understanding of the potential consequences flowing from his admissions and conviction: 12 ( ) THE ADA: APPELLANT: THE ADA: APPELLANT: Okay, Do you understand that you're pleading guilty to a class C violent felony for which the maximum sentence could, could be fifteen years in State Prison? Yup. Okay. Do you understand that if you're again convicted of a felony your conviction here today may subj ect you to a greater sentence than if you had not been convicted? Yes. * * * * _ ....... THE· ADJt:-·········D6y6u uhderstanaslicnIldY-ou:oe arrested· . for committing a new crime while incarcerated before sentencing in this matter you can receive an enhanced sentence on the instant conviction? APPELLANT: Yes. THE ADA: * * * * Do you understand that your statements here today may be used against you in other judicial proceedings as they are admissions of guilt? APPELLANT: Yup. CA. 106, 107, 108). As for appellant's understanding of the sentence to be imposed in exchange for his guilty plea, the following ensued: 13 : ) . :) (~ ) THE ADA: THE COURT: THE ADA: Your Honor, at this time, I know you've done it, but do you want to make a record of the sentence promise? Sentence promise is a ten-year determinant sentence concurrent with the sentence you're going to receive in Rockland County with a mandatory five-year post-release supervision period and there is a mandatory surcharge, I believe it's two hundred fifty dollars with a twenty dollar victim assistance fee for a total of two hundred seventy dollars. Also, Mr. Monk, do you understand that notwithstanding, notwithstanding the fact that you may be receiving a concurrent ~sentericeofteriyears-on-the-Ro6kland- County case, this plea of guilty stands on its own independent of any other conviction? Appellant: Yes. (A. 106-107) . This was the first time that the term "post-release supervision" was mentioned on the record even though plea discussions had been ongoing for the past three days with the court being actively involved in the negotiations on the record. (See, e.g. A. 744-745). There is not a shred of evidence in the record that Monk understood what the term postrelease supervision meant or that it could result in increased incarceration of up to five years, in addition to the ten-year determinate sentence, for a maximum permissible term of incarceration of up to fifteen years. 14 () D. The Motion to Withdraw the Guilty Plea. On May 10,2005, well prior to the adjourned date for sentencing, defense counsel had the case restored to the calendar for the purpose of moving to be relieved, stating that Monk had advised assigned counsel that he wished to withdraw his guilty plea on the ground of ineffective assistance of counsel. CA. 113-115). Monk refused to answer any questions put to him by the Court. The Court then stated as follows: The Court: "I am going to bring you back at two o'clock. I --- -- ------ --- - ----am-goingto have-ailattomeY -here~-- rwilrgiveyOu-- an opportunity to speak to that attorney. If you don't want to speak to him or answer the question, you will be left representing yourself and this matter will be adjourned to June 15th for sentencing. If you want to make a motion to withdraw your plea, to vacate the plea on any grounds, I would advise that you accept any assignment that I make this afternoon; you would be in a much better position having an attorney representing you than you representing yourself. Obviously if you want to make a motion, you're going to have to communicate with the Court at some point in time. I don't know who you feel you're spiting by not talking to me. You want to make an application to vacate your plea, you want to seek certain relief from this Court, you have to talk to the Court. You don't 15 ,~' ) .~ .. ) want to talk to the Court, I will just sentence you on June 15th• At this time, I will grant your application .... So this matter then is adjourned to 2 p.m. for Mr. Monk to decide whether or not he wants a new attorney to represent him." CA. 121-123). That afternoon, new counsel was assigned to represent Monk, subj ect to his retaining private counsel. CA. 123-124). Thereafter, Monk through assigned counsel timely moved to withdraw his guilty plea pursuant to CPL §220.60 on various grounds. One of those grounds was that the guilty plea had not been entered knowingly, intelligently and voluntarily because "the Court did not explain to the defendant at the time of the plea that a violation of post-release supervision could result in his being incarcerated for up to fi ve additional years of imprisorunent, over and above the ten years promised by the Court." CA. 23). Opposing this branch of Monk's motion, the People argued that any error in the plea allocution was harmless as "it was sufficient that the Court explained that he would be getting a mandatory five years postrelease supervision because it is unlikely that the defendant would have proceeded 16 ') " I to go to trial and risk being sentenced to the maximum he was exposed to, which included mandatory postrelease supervision." (A. 42). In reply, Monk argued that the error was not harmless because he was unaware of the impact of postrelease supervision when making the decision to plead guilty and, in addition, "the Court of Appeals in People v. Catu, 4 N.Y.3d 2424 (2005) specifically states that PRS is a direct consequence of a criminal conviction and must be explained to the defendant ... [and m]erely stating that there will be PRS, without explaining what it is, we submit, does not fulfill that direction." (A. 50). -~- .. --.-~- -_ .. __ .---.-- . - ---- - ( -_ .... In a written Decision and Order filed and entered on August 15, 2005, the Court summarily denied Monk's motion holding as follows: (A. 16). "Although it has been held that a defendant must be advised of post-release supervision since it is a direct consequence of a plea, People v. Catu, N.Y.3d 242, 792 N.Y.S. 887, 825 N.E.2d 1081, the consequences of a defendant's violation of postrelease supervision are collateral to a defendant's plea. Therefore, this Court was not required to advise Defendant of the effects of a violation of his post-release supervision. . .. Accordingly, the Court was not required to advise the Defendant that a violation of postrelease supervision would result in incarceration. (emphasis added by court)." 17 : 1 E. The Sentence Monk was sentenced on August 17, 2005 as a second violent felony offender to a determinate term of imprisonment of ten years with a five year post-release supervision period. After pronouncing sentence, the Court then advised Monk as follows: (A. 160). "With respect to the post-release supervision, a violation of post-release supervision may result in reincarceration for a fixed term of at least six months and up to the unserved balance of the post-release supervision term not to exceed five years." Monk was assigned counsel and appealed the denial of his motion to withdraw his guilty plea. The Second Department held, as a matter of law, that the trial court's inquiry was sufficient because the Court had no obligation to inform Monk of the possible ramifications for violating postrelease supervision, including an additional term of incarceration in the state correctional system well beyond the promised determinate term of incarceration. (A. 7). Rigidly applying the direct/collateral consequences test, without considering the "fundamental fairness" aspect of in-court allocutions, the Court wrote as follows: 18 / I c) ( ) ( , ~ , "The Court of Appeals and the Appellate Division, Second Department have not yet addressed whether the consequences of violating the conditions of postrelease supervision must be expressly disclosed to defendants during in-court allocutions and before the judicial acceptance of guilty pleas." * * * * "Here for the first time on appeal in this State, the issue is preserved for appellate review. We agree with the conclusion reached by the First and Third Departments that while a trial court must advise a defendant of the postrelease supervision component of a determinate sentence prior to the acceptance of a guilty plea, it need not allocate on the ramifications of violating the conditions of postrelease supervision, as those ramifications are mere collateral consequences of the conviction and the court's failure to explain them to the . - dE&!udiiiCaoes-iiot render the-plea infiriii. ,,--- ---- - -~ ------------ .. -- ---- ----- ---- ---- People v. Monk, supra, 83 A.D.3d at 38. (A 7) . In so holding, the Second Department equated postrelease supervision with parole and relied upon the decisions in People v. Laster, 38 A.D.3d 242 (1 st Dept. 2007), Iv. denied, 9 N.Y.3d 846 (2007); People v. Behlin, 33 A.D.3d 390 (1 st Dept. 2006), Iv. denied, 8 N.Y.3d 843 (2007), and People v. Muriqi, 9 A.D.3d 743 (3 rd Dept. 2004), Iv denied, 3 N.Y.3d 679 (2004), all of which, in dicta, rigidly applied the direct/collateral consequences test articulated in this Court's decision in People v. Ford, 86 N.Y.2d 397,403 (1995) in rejecting claims that plea allocutions were defective for failing to warn of the potential effect of post-release supervision on the term of incarceration. (A. 7). 19 I, ~ I I ( 1 "-,/ ,. I ARGUMENT I. THE TRIAL COURT'S FAILURE TO ADVISE APPELLANT DURING THE GUILTY PLEA ALLOCUTION OF THE MAXIMUM PERMISSIBLE TERM OF INCARCERATION HE FACED AS THE RESULT OF POSTRELEASE SUPERVISION REQUIRES REVERSAL OF HIS CONVICTION BECAUSE THIS POTENTIAL EFFECT OF POSTRELEASE SUPERVISION IS A DIRECT PENAL CONSEQUENCE OF THE GUILTY PLEA AND APPELLANT TIMELY MOVED TO WITHDRAW HIS GUILTY PLEA ON THIS GROUND The Trial Court found that "the consequences of a defendant's violation of postrelease supervision are collateral to a defendant's plea [and t]herefore, this Court was not required to advise Defendant of the effects of a violation of his postrelease supervision." (A. 16)( emphasis in original). The Second Department agreed and affirmed the Trial Court's summary denial of Appellant's motion to withdraw his guilty plea. We respectfully submit that the Trial Court erred as a matter of law, and thereby abused its discretion, in denying Monk's motion to withdraw his plea. Contrary to the holdings of the Courts below, the maximum permissible term of incarceration a violent felony offender faces by pleading guilty, including the increased range of incarceration for violating postrelease supervision, is a direct penal consequence of a guilty plea, not a collateral consequence. 20 II ,f ) ; " Accordingly, due process of law requires that the court infonn a defendant of this at the time of his or her guilty plea, not merely at the time of sentence as occurred in the case at bar. (A. 160). Appellant's claim is that automatic reversal and vacatur of a guilty plea is required as a matter of due process where: (1) the trial court fails to make a sufficient record that the pleading defendant was advised - and/or understood - that the maximum term of incarceration he faced included not only a promised determinate term, but a potential additional period of incarceration for violations of postrelease supervision; and, (2) the pleading defendant timely moves for relief on this ground. A guilty plea is not only an admission of past unlawful conduct; it is a defendant's voluntary decision to surrender valuable constitutional rights including the right against self-incrimination and the right to require the state to prove culpability beyond a reasonable doubt before imposing punishment. People v. Lynn, 28 N.Y.2d 196 (1971). In People v. Nixon, 21 N.Y2d 338 (1967), this Court held that Due Process of law requires that a guilty plea be accepted only after the court is satisfied that the defendant has been afforded "the opportunity to make a voluntary and rational decision with proper advice in pleading guilty". Nixon, 21 N.Y.2d at 354. This Court acknowledged, but expressly rejected, the 21 () / "-../ idea that Due Process of Law would best be ensured by creating formalistic rules identifying specific information that must be made known to a defendant before a court could accept a guilty plea. Instead, this Court opted for a flexible standard, recognizing that the most rigorous, detailed rules for plea allocutions could, in the circumstances of a particular case, prove inadequate. After considering the facts and circumstances in five cases where guilty pleas were alleged to be defective on account of inadequate plea allocutions, this Court wrote as follows: " From the cases discussed some conclusions can be derived. The primary one is that it is highly doubtful that a uniform mandatory catechism of pleading defendants should be required. . .. There are knowledgeable and criminally experienced defendants and there are those who are lacking in intellect or experience, or both. There are cases where the seriousness of the crime, the competency and experience of counsel, the actual intensive participation by counsel, the nature of the crime as clearly understood by laymen, the rationality of the 'plea bargain,' and the speed or slowness of procedure in the particular criminal court provide ample data as to how far the court should go in questioning defendants before taking a guilty plea. These are all matters best left to the discretion of the court .... " "It is commonplace now that a mature jurisprudence, and criminal jurisprudence is no exception, does not rely only on fixed rules but on broad discretions controlled by flexible standards. Roscoe Pound's comments long ago cannot be improved upon. He said: 'Law is something more than an aggregate of rules. Hence enforcement of law is much more than applying to definite detailed states of fact the pre- appointed detailed consequences .... No legislative omniscience can 22 , ) predict and appoint consequences for the infinite variety of detailed facts which human conduct continually presents." Id. at 353-354 (citations omitted). Nixon remains the law in this state. Time and again, this Court has reaffirmed the proposition that there is no "uniform mandatory catechism" required during a guilty plea, with the exception of certain core areas about which a record must be made as a matter of due process of law. Two years after Nixon, the United States Supreme Court held in ---- ----Boykin v-~-Alabama,-39S-U;S.238(-1-969),-that-DueProcess of Law requires--- -- . ---- ... --- the record of a plea allocution to plainly establish that a gUilty plea was made only upon the defendant's full understanding of both the charges against him and the possible consequences of his plea. The Court cited with approval the recommendation in Commonweath ex. ReI. West v. Rundle, 428 Pa. 102, 105-106 (1968) that the trial court examine the defendant on the record and attempt to satisfy itself "that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences." Id. at footnote 7 (emphasis added). In People v. Harris, 61 N.Y.2d 9 (1983), this Court observed that: 23 : I The clear import of Boykin and its progeny is that the Trial Judge has a vital responsibility "to make sure [that the accused] has full understanding of what the plea connotes and of its consequence" ... , not that a new procedural requirement has been imposed, mandating the Trial Judge's ritualistic recitation of the rights waived upon a guilty plea. Id. at 19 (citations omitted). In an effort to provide guidance to the trial courts as to its "constitutional duty," this Court, in People v. Ford, 86 N.Y.2d 397 (1995), embraced the direct/collateral consequences dichotomy cited in Federal cases, drawing the distinction between: (1) direct consequences about which information must be provided to every defendant on the record in every case as a matter of due process, and (2) collateral consequences which may be mentioned, but for which there was no uniform mandatory requirement of disclosure. In Ford, this Court defined a "direct consequence" as one "which has a definite, immediate and largely automatic effect on [a] defendant's punishment. People v. Ford, supra, 86 N.Y.2d at403, citing, Cuthrell v. Direct, Patuxent Ins., 475 F.2d 1364 (4th Cir. 1973), cert denied 414 U.S. 1005 (1973). Omission of the direct consequences ofa guilty plea from the allocation makes the "plea per se invalid" and voidable upon timely application. People v. Harnett, 16 N.Y.3d 200,205 (2011). To date, the 24 Court has identified only three core components of a sentence which must be discussed during the plea allocution: the term of probation or incarceration, the term of postrelease supervision and the fine. Id. The Sentencing Reform Act of 1998 - also known as Jenna's Law- establishes determinate sentences for violent felony offenders, eliminates their discretionary release from prison, and specifies that in addition to their determinate sentences, they serve a period of post-release supervision. The postrelease supervision statute, Penal Law § 70.45, was designed to replace ----------------the-parole-systern then in-effect-fot violent-felony offenders. - .--- - , ) Penal Law §70.45 establishes postrelease supervision and the specific method for calculating terms of postrelease supervision. It provides that a term of postrelease supervision must be part of every determinate sentence, and that violations of post release supervision may result in re-incarceration for a fixed term between six months and the unserved balance of the postrelease supervision term, not to exceed five years. Unlike the parole system in effect prior to the enactment of Jenna's law, and like the "special parole" or "supervised release" component of a sentence in the federal system, post-release supervision increases a defendant's possible period of penal confinement. It creates the potential for 25 ,F " , ) an enhanced term of penal incarceration and envisions the possibility that a defendant may serve his original sentence plus a substantial additional period of incarceration. It therefore directly impacts on the maximum possible period of incarceration that the law provides for the convicted offense.3 See, People v. Weekes, 28 A.D.3d 499 (2d Dept. 2006)(Postrelease supervision 3 In its analysis, the Nixon Court expressly considered Rule 11 of the Federal Rules of Criminal Procedure, which sets forth certain essential information that must be disclosed to a pleading defendant before it can be found that the guilty plea was knowingly and intelligently entered. The history and development of Rule 11 of the Federal Rules of Criminal Procedure provides persuasive authority supporting appellant's argument that the effect of post -- -- ---.- --------reiease superviSlonTs--a: dlrectconse-quence 6fa-c-C,nvlctlon-wlllch mustl;e expialiiedaf -- --- ----- --------.-- the time of the guilty plea. In 1982, at a time when "special parole" existed for federal narcotics offenders, Rule 11 (c)(I) of the Federal Rules of Criminal Procedure was amended to provide that the Court must inform the defendant of "the mandatory minimum penalty ... and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term ... " (Underlining added). Recognizing that this rule change simply codified existing case law, the Advisory Committee Notes observed that: "The purpose of the amendment is to draw more specific attention to the fact that advice concerning special parole is a necessary part of the Rule 11 procedure. As noted in Moore v. United States, 592 F.2d 753 (4th Cir. 1979): Special parole is a significant penalty. * * * Unlike ordinary parole, which does not involve supervision beyond the original prison term set by the court and the violation of which cannot lead to confinement beyond that sentence, special parole increases the possible period of confinement. It entails the possibility that a defendant may have to serve his original sentence plus a substantial additional period, without credit for time spent on parole. Explanation of special parole in open court is therefore essential to comply with the Rule's mandate that the defendant be informed of "the maximum possible penalty provided by law." The "special parole" provision for federal narcotics offenders is directly analogous to post release supervision for New York State violent felony offenders. 26 impacts on the "true range" of a defendant's sentencing exposure). Compare, People v. Pearson, 55 A.D.3d 314 (1 st Dept. 2008)(Record fails to establish valid plea where trial court did not inform defendant of any of the rights he was waiving and "neglected to inform him of the enhanced sentence he potentially faced if he failed to successfully complete a period of interim probation"); People v. Achaibar, 49 A.D.3d 389 (1 st Dept. 2008)(Record fails to establish valid plea where defendant pled guilty to an "open D" but there was no discussion of the meaning of this term or any inquiry of the scope of possible sentencing). In 2005, this Court held in People v. Catu, 4 N.Y.3d 242 (2005), that postrelease supervision is a direct consequence of a criminal conviction, of which a defendant must be advised at allocution. Accordingly, "a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently chose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction." Id. Court: The ramifications of postrelease supervision were articulated by the "Upon release from the underlying term of imprisonment, a defendant must be furnished with a written statement setting forth the conditions 27 of postrelease supervision in sufficient detail to provide for the defendant's conduct and supervision (see Penal Law § 70.45 [3]). In addition to supervision by and reporting to a parole officer, postrelease supervision may require compliance with any conditions to which a parolee may be subject (see id.), including, for example, a curfew, restrictions on travel, and substance abuse testing and treatment. . . . A violation of a condition of postrelease supervision can result in reincarceration for at least six months and up to the balance of the remaining supervision period, not to exceed five years (see Penal Law § 70.45[1]." Id. (emphasis added). Catu reasonably suggests that a defendant contemplating a guilty plea must be informed of the fact, length and effect postrelease supervision has required to serve. There is nothing "collateral" about this as the impact of postrelease supervision on the full extent of penal confinement that might result from a conviction is a part of every plea involving violent felony offenders, its calculation is fixed by statute, it forms the upper rung of every defendant's range of sentencing exposure, and its potential effect is known at the time of the guilty plea. Compare, People v. Ellsworth, 14 N.Y.3d 546 (2010)(Possible terms and conditions of probation are collateral for purposes of due process because Trial Judge need not speculate during plea allocution on then unknown conditions to which a defendant might later be subject). As aptly observed by this Court in People v. Gravino, 14 N.Y.3d 546, 559 (2010) "in the vast majority of plea bargains the overwhelming 28 consideration for the defendant is whether he will be imprisoned and for how long." Here, Appellant was not informed during the plea allocution that the , i fifteen year range of incarceration he faced for violating the terms of his postrelease supervision was substantially greater than his promised ten year determinate sentence. This Court already has held that in addition to the fact of postrelease supervision, a Trial Court must also inform the defendant of the length of the postrelease supervision term. People v. Boyg, 12 N.Y.3d 390 (2009). In the case at bar, this Court must make clear what was implicit in its prior decisions - the minimum advice that must be given about postrelease supervision is the fact, duration and effect of postrelease supervision on the potential maximum permissible term of incarceration. : ) Accordingly, since Appellant's plea allocution was constitutionally defective and voidable upon timely application, the decision below must be reversed, the guilty plea vacated, and the case remanded to the Trial Court for further proceedings because Appellant timely moved to withdraw his guilty plea on the ground that he was not informed of the effect postrelease supervision had on the potential length of his sentence. 29 II. THE TRIAL COURT SHOULD HAVE GRANTED APPELLANT'S TIMELY MOTION TO WITHDRAW HIS GUILTY PLEA PREMISED ON APPELLANT'S CLAIMED LACK OF UNDERSTANDING AS TO THE POST-RELEASE SUPERVISION COMPONENT OF HIS SENTENCE OR, AT A MINIMUM, AFFORDED HIM A MEANINGFUL OPPORTUNITY TO BE HEARD Even if this Court finds that the effect of postrelease supervision on the potential length of a convicted defendant's term of incarceration is collateral for purposes of due process and not a direct consequence of a plea, ------ ------ -reversaland remand foi-a liearfng- isstnfrequired to afford -Appellant afiilC ------- ----- - ------- and fair opportunity to demonstrate that he pleaded guilty in ignorance of the effect postrelease supervision had on his potential sentence and that this consequence was of such importance to him that he would not have entered a guilty plea had the Court informed him of it. Significantly, this is a case where the defendant promptly moved to withdraw his guilty plea and thereby did all he could do to preserve his claim of involuntariness. In Ford, this Court held that deportation was a collateral consequence of a conviction and no record was required to be made as to the defendant's understanding of the immigration consequences of a guilty plea before 30 . ) accepting a guilty plea.4 In language we respectfully submit was most unfortunate, this Court stated that "failure to warn of such collateral consequences will not warrant vacating a plea because they are peculiar to the individual and generally result from the actions taken by agencies the court does not control." This language was unfortunate because it suggested that the failure to advise of a particular collateral consequence could never warrant vacating a guilty plea on the ground it was not knowingly and intelligently made. This language was clearly at odds with the flexible due process standard pronounced in People v. Nixon for evaluating the sufficiency of judicial inquiries during plea allocutions. It has been the law in this state, for at least forty years, that there can be no rigid litany or "uniform mandatory catechism" in guilty plea allocutions because "the circumstances are too various" to predict "the rationality of the 'plea bargain,'" for a particular 4 This Court's decision in Ford is called into question, if not partially overruled, by the Supreme Court of the United States' decision in Padilla v. Kentucky, 559 U.S. _, 130 S.Ct. 1473 (2010). In Padilla, the Court held, contrary to this Court's decision in Ford, that defense counsel does have a duty to advise a client of the ascertainable immigration consequences of a guilty plea, even though such immigration consequences may not be strictly viewed as direct consequences because they are civil, not penal sanctions that flow from the conviction. Notably, the plea allocution colloquy implicates not only the Due Process Clause of the Fifth and Fourteenth Amendments, but the Sixth Amendment right to the effective assistance of counsel as well for it is during the plea allocution that the Trial Judge is charged with the responsibility of ensuring that defense counsel provided meaningful, conflict-free representation in the context of the guilty plea. See, ~, People v. Monroe, 54 N.Y.2d 35 (1981)(trial court has duty to make an appropriate inquiry before accepting guilty plea in case where defense counsel represents multiple defendants) . 31 , I defendant and therefore "how far the court should go in questioning defendants before taking a guilty plea." Nixon, supra at 353. Recently, in People v. Gravino, 14 N.Y.3d 546 (2010), this Court held that the failure to advise a defendant during the guilty plea allocution of the impact of the Sex Offense Registration Act ("SORA") did not, by itself, violate the defendant's due process rights because SORA was a collateral civil consequence of the conviction. Significantly, the Court then stated: "It does not necessarily follow, though, that nondisclosure is always irrelevant to the question of whether a court should exercise its discretion to grant a motion to withdraw a plea. There-may be cases inwhicn i-defendant cari-show that he- pleaded guilty in ignorance of a consequence that, although collateral for purposes of due process, was of such great importance to him that he would have made a different decision had that consequence been disclosed." Gravino, id., at 559. Thereafter, in People v. Harnett, 16 N.Y.3d 200 (2011), this Court held that"failing to warn a defendant who pleads guilty to a sex offense that he may be subject to the Sex Offender Management and Treatment Act (SOMTA) does not automatically invalidate the guilty plea." Harnett, id., at 203 (elnphasis added). This Court recognized that lack of knowledge about collateral consequences can in a particular case render the guilty plea involuntary and be too important to be left out of a plea allocution. The Court denied relief 32 " ) on procedural grounds. However, relying upon Gravino, the Court observed that, "[S]ince SOMTA consequences can include extended confinement, a plea made in ignorance of such consequences may sometimes be proved involuntary - - if a defendant can show that the prospect of SOMTA confinement was realistic enough that it reasonably could have caused him, and in fact would have caused him, to reject an otherwise acceptable plea bargain. Of course, in such cases the defendant will have to prove that he did not know about SOMTA - - i.e., that his lawyer did not tell him about it - - before he pleaded guilty. Thus, the issue of whether the plea was voluntary may be closely linked to the question of whether a defendant received the effective assistance of counsel (cf. Padilla v. Kentucky, 130 S.Ct. 1473 (2010). This defendant has not moved to withdraw his plea. On this record, we do not know either whether his lawyer told him about SOMTA or whether, considering the facts of defendant's situation, SOMTA would have been a significant factor in the evaluation of a plea bargain. In short, defendant has not made the factual showing that would justify plea withdrawal. He is therefore not entitled to relief on this appeal." Id., at 207-208. Dissenting in Harnett, Judge Ciparick, joined by Judge Jones, found that Harnett's case should have been remanded to the county court to permit him to move to withdraw his plea because "a defendant cannot be said to knowingly and voluntarily forego his right to trial ifhe does not know the full extent of confinement that might result from his conviction. 'Freedom from bodily restraint [is] at the core of the liberty protected by the Due 33 Process Clause' (Foucha v. Lousiana, 504 U.S. 71, 80 (1992)." Harnett, at 209. Unlike Harnett, in this case, Appellant timely moved to withdraw his plea contending that he was unaware of the impact postrelease supervision had on his sentence. The Trial Court abused its discretion in summarily denying Appellant's motion without affording him an opportunity to make the factual showing to which Harnett indicates he was entitled. To paraphrase Harnett, since the consequences of the term of postrelease supervision will indeed "include extended confinement, [Monk's] plea made in ignorance of such consequences may . . . be proved involuntary - if [Monk] can show that the prospect of confinement was realistic enough that it reasonably could have caused him" - and in fact did cause him - "to reject .. ) [his] otherwise acceptable plea bargain." See also, People v. Latham, 90 N.Y2d 795 (1997)(In the absence of a timely motion to withdraw a guilty plea, the plea and resulting conviction are presumptively voluntary, valid and not otherwise subject to collateral attack); People v. Louree, 8 N.Y.3d 541, 545-546 (2007) (Plea vacated because defendant did not learn of an essential element of his sentence - that a prior conviction constituted a predicate felony - until sentencing). 34 In People v. Van Deusen, 7 N.Y.3d 744 (2006), the defendant pled guilty to robbery in the first degree in exchange for a determinate sentence of not less than 5 or more than 15 years. Prior to sentencing, the defendant moved to withdraw her guilty plea on the ground she had not been advised about the postrelease supervision component of her sentence. Denying the motion, the Court sentenced the defendant to 8 years and 5 years of post- release supervision for a potential possible sentence of 13 years. On appeal, the Appellate Division affirmed because the maximum potential sentence of 13 years was not in excess of the I5-year maximum sentence appellant could have received under her plea agreement and she therefore was not deprived ,) of the benefit of her plea bargain. Reversing the Appellate Division, the Court of Appeals, relying on People v. Catu, held that appellant's decision to plead guilty could not be said to be knowing, voluntary and intelligent because she did not possess all the information necessary for an informed choice among different possible courses of action. Appellant respectfully submits that the Second Department's decision in this case is wholly inconsistent with the reasoning and holding of Harnett. At bar, unlike in Harnett, appellant timely moved to withdraw his guilty plea contending that he was unaware of the full potential range of confinement 35 resulting from the imposition of a term of post- release supervision. A question of fact arose from the motion papers that could have justified the withdrawal of appellant's guilty plea. As in Van Deusen, it cannot be said in this case that Appellant possessed all the information necessary for an informed choice when deciding whether to plead guilty. At a bare minimum, appellant was entitled to a hearing to explore whether he had been otherwise made aware of the consequences of postrelease supervision by his defense counsel, including the potential increased period of incarceration, and whether postrelease supervision was a significant factor in appellant's evaluation of the plea. See, Harnett, supra. The trial judge has a duty independent of defense counsel to protect the right of an accused to the effective assistance of counsel. People v. Mattison, 67 ) N.Y.2d 462 (1986). At bar, the record is silent as to whether Appellant understood at the time of his guilty plea that as a direct consequence of his guilty plea and conviction, he could be re-incarcerated by the Court for at least six months and up to five years for a violation of post-supervision release, in addition to the ten year promised determinate sentence. Appellant timely moved to withdraw his plea, and because the court below failed to make an adequate record, it must be presumed that Monk pled guilty without knowledge of the significant 36 .. \ penal consequences resulting from postrelease supervision, including the increase in the maximum permissible term of incarceration beyond the promised ten year sentence. For the reasons set forth in Nixon, and its progeny, including Gravino and Harnett, it was an abuse of discretion by the trial court to find that Monk's guilty plea was knowingly and voluntarily made without affording him an opportunity to establish that ignorance of the impact of postrelease supervision impacted on his decision to plead guilty . \ 37 CONCLUSION MONK'S CONVICTION SHOULD BE REVERSED AND THE CASE REMITTED FOR FURTHER PROCEEDINGS Date: November 21,2011 New York, New York 38 Respectfully submitted, Attorney for Defendant- Appellant Terrance Monroe 369 Lexington Avenue, 15th Floor New York, New York 10017 (212) 867-3600
