People v Gonzalez
Annotate this CaseDecided on June 2, 2005
Supreme Court, Bronx County
THE PEOPLE OF THE STATE OF NEW YORK,
against
Enrique Gonzalez, Defendant.
55-99
Richard Lee Price, J.
On January 10, 2000, upon his plea of guilty, Defendant was convicted of Rape in the first degree, P.L. § 130.35 and, pursuant to the negotiated agreement, he was sentenced to a term of six years imprisonment. After an unsuccessful motion under C.P.L. § 440.10, alleging that he received ineffective assistance of trial counsel, and alleging his own incapacity to understand the proceedings against him, see Decision and Order (Price, J.), entered October 2, 2000, Defendant's conviction was affirmed by the Appellate Division, People v. Gonzalez, 294 AD2d 966 (1st Dept.), lv. app. denied 98 NY2d 697 (2002).
In papers dated and notarized December 14, 2004, but not noticed by the Clerk's Office on this Court's calendar until April 12, 2005, Defendant has now made a pro se motion pursuant to C.P.L. § 440, this time to set aside his sentence on the ground that he was never advised of the post-release supervision (P.R.S.) component of the sentence when he agreed to plead guilty. See P.L. § 70.45. In response, the People have themselves moved to dismiss the Defendant's motion because, they allege, he is unavailable, having failed to register with the parole authorities upon his release from prison. Although not so denominated, the Court will treat the People's response as a cross-motion.
The Defendant has not submitted a copy of his plea and sentence minutes in support of his motion, but the People have, and a review of the minutes indicates that post-release supervision was not mentioned on the record at either of those appearances, although it may have been discussed by the Defendant with his attorney. However, Defendant does not assert this, nor does he respond to the People's motion, despite the People's affidavit of service showing that it was duly mailed to the address they have for him.
In support of the People's cross-motion, they have submitted an affirmation of counsel, a memorandum of law, and two exhibits: the plea and sentence minutes already mentioned, and this Court's October 2, 2000 order denying the Defendant's first post-conviction motion. Neither of these exhibits, of course, goes to the issue raised by the cross-motion, viz., that the Defendant has made himself unavailable, and because of that, his motion should not be considered on the [*2]merits. Indeed, the only factual support for the assertion of unavailability is the submitting-prosecutor's affirmation that he spoke with Parole Officer Mario Davilla and Parole Supervisor John Kohene. The prosecutor relates that these Parole officials informed him that "defendant failed to contact the Department of Parole within twenty-four hours after his release from Mohawk Correctional Facility on December 20, 2004, as he was required to do. When parole officers visited 47 Victor Street, Yonkers, NY, the address that defendant gave to the Department of Corrections, they found the residence under construction and uninhabited. In addition, the phone number that defendant gave to the Department of Correction was disconnected. The Department of Parole placed wanted posters in the area surrounding defendant's alleged residence, and has issued a warrant for his arrest." See April 19, 2005 Affidavit of A.D.A. Jacob Kaplan, at ¶ 9. Accordingly, the People urge this Court to dismiss the motion.
Discussion
Quite recently, the Court of Appeals made clear that post-release supervision is a "direct," not a "collateral" consequence of a defendant's guilty plea, and trial courts are responsible for ensuring that a defendant is aware of this component to a sentence before they accept a plea. People v. Catu, 4 NY3d 242 (2005). See also People v. Cintron, ___ AD3d ___, 2005 NY App. Div. LEXIS 5439,* (1st Dept. 2005) (failure to advise defendant of P.R.S. rendered plea "not fully knowing, voluntary and intelligent"); People v. Boatwright, ___ Misc2d ___ (Sup.Ct. Bronx Co. 2003) (Price, J.) (Post-release supervision is direct, not collateral consequence of plea of guilty). A trial court has a constitutional obligation to explain the ramifications of the post-release supervision component, Catu, supra , at 244-245. Because error in taking a guilty plea is fundamentally different from a trial error, the High Court further explained that the harmless error rule does not apply, irrespective of whether a defendant states in his moving papers that, had he known of the P.R.S. component, he would not have chosen to accept the plea bargain. Id., at 245.
As noted above, the People do not respond to the substance of Defendant's motion and, were that the end of the matter, under Catu, the Defendant's motion would have to be granted. But as the People point out, Defendant is unavailable, so any ruling in his favor could not be given effect. Indeed, that is precisely the rationale behind the rule, or judicial doctrine of "fugitive disentitlement." See People v. Uboh, 4 Misc2d. 3d 1007A, 791 NYS2d 872 (Sup.Ct. Queens Co. 2004) (Seymour Rotker, J.) ( defendant now in federal custody not entitled to consideration of motion for post-judgment relief).
The rule is of long standing in New York, see People v. Mongen, 76 NY2d 1015 (1990), citing People v. Genet, 59 NY 80 (1874), and in the federal courts, Smith v. United States, 94 U.S. 97 (1976). See also Degan v. United States, 517 U.S. 820 (1996). The Supreme Court of the United States originally explained it this way:
It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render. In this case it is admitted that the plaintiff in error has escaped, and is not within the control of the court below, either actually, by being in custody, or constructively, by being out on bail. If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest. Under such [*3]circumstances, we are not inclined to hear and decide what may prove to be only a moot case.
Smith v. United States, supra , at 97.
The rendering of the rule by Court of Appeals employs language even more applicable here:
The whole theory of criminal proceedings is based upon the idea of the defendant being in the power, and under the control of the court, in his person. . . . The fact that, in this State, the law allows proceedings on writs of error without requiring the actual presence of the criminal in court, does not at all conflict with the view that steps will not be allowed to be taken on his behalf, when he is no longer in custody or on bail, but has fled from the custody of the law. His presence in court is necessary when he is to be tried, or when some sentence or judgment involving his corporal punishment is to be pronounced. His being in custody is necessary to any step for or against him, except such as may be taken to bring him again into custody.
People v. Genet, supra , at 82.
As the People point out, should the Defendant later come within the mandate of the courts, this Court has the inherent authority to permit the application anew. See, e.g., People v. Corley, 57 NY2d 861 (1982). This is perhaps of even greater comfort here where the only showing of the Defendant's unavailability is the sworn statement of the assigned assistant. As an officer of the courts, there is no reason to doubt him, and it would be but a mere formality to continue this motion simply to secure an affidavit from the parole officers whom the prosecutor names and quotes. However, it is the usual rule that courts rely upon independently demonstrated facts, leaving it to the attorneys appearing on a matter to employ those proven facts through their advocacy. As the Appellate Division has repeatedly taught in the civil context, a "complaint verified by counsel amounts to no more than an attorney's affidavit and is therefore insufficient to support entry of judgment pursuant to C.P.L.R. § 3215." Mullins v. DiLorenzo, 199 AD2d 218, 220 (1st Dept. 1993). See also Finnegan v. Sheahan, 269 AD2d 491 (2nd Dept. 2000) and Hazim v. Winter, 234 AD2d 422 (2nd Dept. 1996) (both relying on Mullins).
Accordingly, should the Defendant re-appear in the court system, either by being arrested on the parole warrant that is now lodged against him, or by voluntarily reporting to the authorities, he may make application for reconsideration of his motion. For the moment, however, the Defendant's motion is DENIED and the cross-motion to dismiss is GRANTED.
This shall constitute the Decision and Order of the Court.
Dated: Bronx, New York
June ___, 2005
E N T E R[*4]
_________________________
Richard Lee Price, J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
