People v Cuadrado

[*1] People v Cuadrado 2005 NY Slip Op 51023(U) Decided on March 28, 2005 Supreme Court, New York County Wetzel, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 28, 2005
Supreme Court, New York County

THE PEOPLE OF THE STATE OF NEW YORK

against

William Cuadrado, Defendant.



15082/91



For the People:

Robert M. Morgenthau

District Attorney

New York County

1 Hogan Place, New York, New York 10013

By: Steven Goldstein

Assistant District Attorney Of Counsel

For the Defendant:

William Cuadrado

DIN 92-A-9213

Gouverneur Correctional Facility

Scotch Settlement Road, P.O. Box 480, Gouverneur, NY 13642-0370

Pro Se

William A. Wetzel, J.

This case is yet another piece of evidence - - if we really needed more - - of two enduring truths in criminal law: first, procedural gyrations intended to facilitate a plea bargain frequently backfire, many years after they have been concluded, and; a full, knowing, and voluntary waiver is seldom an actual, enduring waiver.

BACKGROUND

On October 16, 1991, the defendant and his co-defendants, Felix Rivera and Christopher Voytasko, were hanging out together and looking for something to occupy their time. They entered the 3 Deli and Grill located at 133 E. 55th Street in Manhattan and attempted to rob Mohammed Gasem Gharama and his co-worker, Kahlid Altaffi. During the course of what the defendant describes as a "botched robbery attempt," the defendant shot both men, killing [*2]Gharama and seriously wounding Altaffi. The New York County District Attorney presented the case to the Grand Jury on October 23rd and 24th, 1991. At the close of the presentation, the Assistant District Attorney submitted the following charges to the panel for deliberation: Murder in the Second Degree, in violation of Penal Law §125.25(3); Attempted Robbery in the First Degree, in violation of Penal Law §§110/160.15(4); Attempted Robbery in the Second Degree, in violation of Penal Law §§110/160.10(1); Attempted Robbery in the Second Degree, in violation of Penal Law §§110/160.10(2)(a); Criminal Possession of a Weapon in the Second Degree, in violation of Penal Law §265.03; and Criminal Possession of a Weapon in the Third Degree, in violation of Penal Law §265.02(4).

Although the felony complaint contained a charge of Assault in the First Degree relating to the gunshot wounds suffered by complainant Altaffi, the Assistant District Attorney did not submit that charge to the Grand Jury. However, it should be noted that Mr. Altaffi appeared as a witness before the Grand Jury and in response to questions from the Assistant District Attorney, testified extensively about his injuries and the treatment he received for them. See Grand Jury Minutes of October 23, 1991 at pgs. 22, lines 16-25; pg. 23, lines 1-22.

The Grand Jury returned an indictment charging all of the counts submitted to it, Indictment 11727/91. The case was sent to the Honorable Harold J. Rothwax in New York State Supreme Court for all purposes. On June 30, 1992, the parties appeared before Judge Rothwax and informed him that they had agreed on a disposition after "extensive conversations with each other." See Transcript of June 30, 1992 at pg. 2, lines 23-26. Those extensive conversations resulted in the following disposition: the defendant pled guilty to Attempted Murder in the Second Degree under the first count of Indictment Number 11727/91. He also plead guilty to Criminal Possession of a Weapon in the Third Degree under count six of that same indictment. Further, the defendant waived indictment and agreed to plead guilty to Assault in the First Degree (the sole charge listed on the felony complaint which was not submitted to the Grand Jury) under New York County Superior Court information ("SCI") number 15082/91.

The court promised to sentence the defendant to an indeterminate term of eight to twenty-four years on the Attempted Murder count, two to six years on the Weapons count, the sentences to run consecutively, and four to twelve years on the First Degree Assault under the SCI, that sentence to run consecutively to the sentences under Indictment 117127/91, for a total sentence of fourteen to forty-two years. As part of the plea agreement, the defendant waived his right to appeal any matter with regard to the sentence. On July 22, 1993, the defendant was sentenced in accordance with the agreement. See Sentencing minutes attached to defendant's motion as Exhibit 7.

Despite defendant's explicit waiver of his right to appeal, an onslaught of appeals predictably followed. His direct appeal was rejected in a unanimous affirmance with no opinion. People v. Cuadrado, 208 AD2d 1181 (1st Dept. 1994). Leave to appeal was denied at People v. Cuadrado, 82 NY2d 934 (1994). The sole claim raised on the appeal was that the sentence was "unduly harsh and severe" and should be reduced pursuant to the appellate court's discretionary "interest of justice" jurisdiction. See Cuadrado v. Stinson, 992 F. Supp. 685, 686 (S.D.NY 1998).

In 2003, the defendant filed a motion pursuant to CPL §440.20 to modify his sentence, arguing that the consecutive sentences imposed on the Attempted Murder and Criminal [*3]Possession of a Weapon counts were illegal. Defendant argued that those sentences had to run concurrently pursuant to Penal Law §70.25(2). On March 5, 2003, the Honorable John Cataldo granted defendant's motion, and ordered the consecutive sentences to run concurrently.

Defendant now brings the instant motion pursuant to CPL §440.10 and §440.20 to set aside his conviction under SCI number 15082/92 or, in the alternative, to set aside the consecutive sentence of four to twelve years and to run that sentence concurrently to his sentence of eight to twenty-four years. The defendant argues that the SCI in this case was invalid under the factual circumstances of the case in violation of CPL §195.10 and the cases interpreting the proper use of that waiver procedure. The People respond that defendant's motion must be summarily denied because he could have raised this issue on direct appeal, but unjustifiably failed to do so. See CPL §440.10(2)( c). The People further argue that in view of this procedural bar, the court need not reach the substantive issue of the propriety of the SCI. However, they contend that if the court reaches this issue, the SCI was proper because the Grand Jury did not consider the Assault in the First Degree charge which was the subject of the SCI.

DISCUSSION

The New York State Constitution requires that "no person be held to answer for an infamous crime unless upon indictment of the Grand Jury." N.Y.Const. Art. I, §6. This right is not merely a "personal privilege of the defendant, but a public fundamental right which is the basis of jurisdiction to try and punish an individual. Infringement of that right constitutes a defect that cannot be waived by guilty plea." People v. Boston, 75 NY2d 585, 588 (1990). A constitutional amendment effective January 1, 1974, modified this stringent requirement to allow waiver of indictment in one particular procedure. That exception is embodied in CPL Article 195, particularly CPL § 195.10, which specifies the narrow circumstances in which the People may prosecute a defendant via a Superior Court Information filed by the District Attorney instead of by Grand Jury indictment. CPL 195.10 allows waiver of indictment under the following circumstance:

"1. A defendant may waive indictment in consent to be prosecuted by Superior Court information when:

(a) a local criminal court has held the defendant for the action of a Grand Jury; and

(b) the defendant is not charged with a class A Felony; and

(c) the District Attorney consents to the waiver.

2. A defendant may waive indictment pursuant to sub-division 1. in either:

(a) the local criminal court in which the order was issued holding the defendant for action of a Grand Jury, at the time such order is issued; or

(b) the appropriate Superior Court, at any time prior to the filing of an indictment by the Grand Jury."

The objective of this deviation from the constitutional right by indictment by a Grand Jury is to "allow defendants to obtain speedier disposition of pending criminal charges, while not infringing on their constitutional protections. [citation omitted]. A waiver of indictment and a [*4]departure from the constitutional safeguard and procedural sine qua non is available, however, only within the express authorization the governing constitutional and statutory exception. The general good end, then, does not justify specific 'end run' means. [citation omitted]." People v. Trueluck, 88 NY2d 546, 550 (1996).

Predictably, however, what one lawyer (or court) views as a narrow exception to a fundamental right, another lawyer (or court) may view as a technique for "permitting greater flexibility in the plea process generally." Boston, supra, at 588. What developed was a new legal landscape of prosecutors - - in all fairness, frequently with the full consent and support of defense attorneys - - manipulating the waiver provisions to accomplish the desired result in a particular plea bargain. A few examples will suffice to make the point. In Boston, supra, the Grand Jury indicted the defendant for Attempted Murder in the Second Degree under an intentional murder theory, and two counts of Assault in the First Degree and Criminal Possession of a Weapon in the Fourth Degree. With the consent of the defendant, his counsel, the People, and the court, after arraignment on that indictment, the People filed an SCI, charging defendant with Attempted Murder in the Second Degree under a depraved indifference theory. The defendant waived his right to have the People present that charge to the Grand Jury. Then, on the People's motion, the court consolidated the SCI with the indictment, making the depraved indifference count of the SCI count five of the indictment. Defendant then pled guilty to both attempted depraved indifference murder and First Degree Assault and was sentenced to two concurrent indeterminate terms of imprisonment. Despite the waiver and consent of both the defendant and his counsel, the defendant subsequently sought vacatur of the plea, arguing that this procedural patchwork was impermissible. The Court of Appeals held that it was in fact impermissible, emphasizing that CPL 195.10(2)(b) specifies that "waiver of an indictment must be exercised prior to the filing of an indictment by the Grand Jury." Boston at 588. The court reiterated that the basic objective of Article 195 was to permit waiver of indictment for defendants "who wished to go directly to trial without waiting for a Grand Jury to hand up an indictment." Id. The court soundly rejected the People's argument that the legislature, in enacting CPL 195, had in mind the broader purpose of permitting greater flexibility in the plea process generally. That...was not made evident in the language or history of the statute; and, if indeed the purpose, it remains for the legislature - - not the courts - - to rewrite the statute to express that objective." Id. at 588.

Lawyers being lawyers, however, the People were undeterred in their search for creative ways to extend the waiver provision. In People v. D'Amico, 76 NY2d 878 (1990), a new manipulation was employed. Defendant D'Amico shot and killed one person and assaulted and attempted to kill another. He was indicted for Murder in the Second Degree, Attempted Murder in the Second Degree, Assault in the Second Degree, and Criminal Possession of a Weapon in the Second and Third Degrees. As a result of plea negotiations, a felony complaint was then filed charging the defendant with Criminal Use of a Firearm in the First Degree in connection with the very same incident. The defendant was held for Grand Jury action with respect to this new charge. He then plead guilty to the SCI charge and to Manslaughter in the First Degree in satisfaction of all the counts of the indictment. Predictably, despite his full and voluntary consent to all of these legal hijinks, the defendant subsequently sought vacatur of his plea to the SCI, arguing that the SCI was jurisdictionally defective. D'Amico, supra, at 878. The Court of [*5]Appeals held that the filing of a new felony complaint satisfied the language of the statute. Distinguishing this case from Boston, the court found that unlike the situation in Boston, where the indictment had been filed but there was no additional felony complaint, the new felony complaint filed in this case provided the "explicit statutory predicate for a waiver - - an order holding defendant for Grand Jury action - - and a waiver, by eliminating the need for a superceding indictment, serves both of the statutory purposes identified in Boston." D'Amico, at 881.

Judge Kaye, in a strongly-worded dissent, rejected the majority's rationale. She observed, "We are again asked the same question [as was asked in Boston] but, remarkably, we give the opposite answer, this time upholding defendant's plea to an SCI after indictment, and sanction the facile circumvention of what we have just identified of the plain language and purpose of CPL 195.10(2)(b)." Id. She found the distinction between Boston and D'Amico pretextual, commenting:

"in distinguishing Boston and justifying the result it now reaches, the court attributes critical importance to the filing of a felony complaint, several times noting that defendant here was being held for Grand Jury action with respect to the new charge, and that an order was issued holding him for action of a Grand Jury. No such order was issued. It is plain from a recitation of the facts, and undisputed by the parties, that the felony complaint was filed merely to facilite the plea bargain, not to hold this defendant or submit the charge in the felony complaint to a Grand Jury. Significantly, the People make no pretense that it was. Our abrupt about-face cannot engender respect for this court's holdings...the practical solution that was devised by the parties here may well be a very desirable one - - that is not the issue. The point is that any solution should be affected within the letter and the spirit of the law." D'Amico at 881.

Believing that they had, at minimum, put their foot in the procedural door in D'Amico, the People attempted to crowbar that door open a little bit further in Trueluck, supra. In Trueluck, which the court characterized as involving "another variation in the use of Superior Court Informations to prosecute and quickly conclude criminal proceedings by negotiations and guilty plea," defendant was charged in a felony complaint with Murder in the Second Degree and various weapons possessions counts arising out of a fatal shooting. He was held on this complaint for action by a Grand Jury. Meanwhile, a plea package was negotiated. Defendant was to plead guilty to Manslaughter in the First Degree as the highest and most serious count in connection with a 1993 homicide, but also plead guilty to lesser charges in satisfaction of a separate, unrelated indictment. To accomplish this, the People filed an SCI charging the defendant with Manslaughter in the First Degree and Criminal Use of a Firearm in the First Degree. No indictment on any criminal conduct involving the 1993 incident was ever sought. At a court appearance on the SCI, the terms in the plea agreement were discussed, the defendant waived indictment knowingly and voluntarily, and pled guilty to the charges contained in the SCI.

Despite the defendant's "knowing and voluntary waiver," he predictably appealed, arguing that the waiver in this case was jurisdictionally defective. The Appellate Division agreed with him, citing concurring opinions involving "parallel fact patterns" in three other Departments of the Appellate Division. In their appeal to the Court of Appeals, the People argued that waiver [*6]of indictment was permissible pursuant to CPL §195.10(1)(b) "if the defendant is not charged with a class A felony, as an extension of the rationale of People v. D'Amico." Trueluck, supra, at 550. The Court of Appeals disagreed, concluding "that such an extension is neither justified nor warranted by the rationale of People v. D'Amico, nor by the statutory language or its purpose. Rather, the People's theory would constitute a direct contradiction of these governing principles." Id. The People asserted that such an approach was "formalism," but the Court of Appeals' "ready answer" to that argument "is that they [the People] can lawfully achieve their practical goals by simply complying with the Constitution and governing statutes instead of trying to 'steer around' them. [citations omitted]" Id. This court finds find that the same analysis applies here.

As a threshold matter, the People argue that the defendant is procedurally barred from raising this issue at this late date for the first time, approximately thirteen years after he pled guilty. They assert that his failure to raise this claim in his direct appeal forecloses review here, citing CPL § 440.10(2)(c)("the court must deny a motion to vacate a judgment when although sufficient facts appear on the record of proceedings underlying the judgment to have permitted, upon appeal of such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to....raise such ground or issue upon an appeal actually perfected by him"). Citing People v. Barber, 280 AD2d 691 (3d Dep't 2001), lv den., 96 NY2d 825 (2001), they claim that even a claim of jurisdictional defect is no exception to this procedural bar.

In Barber, the defendant was charged with aggravated unlicensed operation of a motor vehicle in the first degree, a felony. It was "undisputed that the local criminal court never issued an order holding defendant over for action by the Grand Jury or transmitted such an order to County Court with the required documentation, although required by CPL 180.30(1) and 180.70(1)." Id. at 692-3. Represented by counsel, defendant executed a waiver of indictment, consenting to be prosecuted by SCI pursuant to CPL § 195.10 et seq. He received the full panoply of warnings, knowingly and voluntarily waived rights, then consented to the terms of a plea agreement negotiated by his counsel, pled guilty, and was sentenced pursuant to the terms of the agreement.

Defendant subsequently violated the terms of the probationary part of his sentence, causing revocation of his probation and resentencing to a prison term. He moved to vacate the judgment of conviction and the revocation of his probation pursuant to CPL § 440.10 on the ground, inter alia, that the SCI was jurisdictionally defective because "the record was devoid of information indicating that he was ever held for Grand Jury action on any local court accusatory instrument prior to waiving indictment and pleading guilty, as provided in CPL § 195.10." Id. at 692.

The Appellate Division, Third Department, rejected defendant's appeal and affirmed his conviction, finding no jurisdictional defect:

"...we may presume that County Court had jurisdiction over defendant where,

as here, 'the record fails to establish that defendant did not waive a preliminary

hearing, that a hearing was not held, or that the charges were still pending in

[the local criminal court]....the fact that the matter had been transferred to County Court is evidence that defendant had been held for action by the Grand Jury." Id. at 692-3. [*7]

It is apparent from the discussion in Barber that there was no official documentation, such as a written felony complaint, in the Washington County local criminal court or the County Court court file establishing that the defendant had indeed been "held for Grand Jury action," the essential prerequisite for waiver of indictment pursuant to CPL § 195.10(1)(a). The appellate court decided to "presume that County Court had jurisdiction," Barber at 693, based on the behavior of the parties, which assumed that the defendant had indeed been held for Grand Jury action.

The People's reliance on Barber is misplaced. Of course, this court is not bound by a decision issued by the Third Department in a case which arose out of the workings of the Washington County court system, which we may presume is far smaller than New York county, thus engendering very different administrative practices and procedures. Here, unlike Barber, not only was a felony complaint filed in the local Criminal Court, officially "holding" the defendant for Grand Jury action, but an indictment was subsequently filed, terminating that "hold" and transferring jurisdiction to the Supreme Court. At that juncture, the jurisdictional question became entirely different from the question posed in Barber. Finally, with all due deference to the Third Department, it is apparent to this Court after lengthy analysis of the Court of Appeals' jurisprudence in this area that "presuming" jurisdiction based on the "actions of the parties" is not a favored mode of analysis.

It is conceded that the defendant raised this issue for the first time in this motion. However, this court concludes that his failure to raise the issue in his direct appeal is not a bar to raising it now. As the Court of Appeals has observed in many cases over the course of many years, "A criminal defendant cannot waive, or even consent to, error that would affect the organization of the court or the mode of proceedings prescribed by law. Cancemi v. People, 18 NY 128, 138 (1858). The issue raised herein involves a fundamental jurisdictional defect affecting the organization of the court or the mode of proceedings...thus, the rule has come down to us that where the court had no jurisdiction...or where there was a fundamental nonwaivable defect in the mode of procedure, then an appellate court must reverse, even though the question was not formally raised below. [Emphasis added]." See generally People v. Patterson, 39 NY2d 288, 295 (1976), aff'd sub nom Patterson v. New York, 432 US 197 (1977). As the preceding analysis of the governing case law as applied to the facts of this case demonstrates, the idiosyncratic use of the SCI in this case clearly "involves a fundamental jurisdictional defect affecting the organization of the court and the mode of proceedings prescribed by law" which cannot be waived or ignored.

This case is yet another permutation of the ongoing attempt to stretch the limits of the waiver statute. Here, the felony complaint in fact charged a class A felony, Murder in the Second Degree, PL §125.25(3). The waiver procedure of CPL §195.10 was therefore unavailable. See CPL §195.10(1)(b). The case was presented to the Grand Jury, and the indictment was voted. Although the relevant witness testified fully to all of the elements of Assault in the First Degree, for whatever reason - - either through inadvertence or by design - - the Assistant District Attorney did not ask the Grand Jury to deliberate on that charge. See Grand Jury minutes of October 24, 1991, at pg. 76, lines 6-25; pgs. 77-89. Upon the filing of the indictment, the case was sent to Supreme Court for all further proceedings. At that juncture, the waiver procedure was unavailable in this case since the indictment had been filed. See CPL §195.10 (2)(a)(b); Boston, [*8]supra; People v. Casdia, 78 NY2d 1029 (1991) ("Here, as in Boston, we are faced with a...situation...the defendant was already subject to an extant, at least partially valid, indictment and no formal pre-indictment status existed...A formal pre-indictment procedural track...is CPL §195.10's precise qualifying prerequisite.").

The People unconvincingly argue that the unindicted Assault in the First Degree charge in the felony complaint survived the indictment and was still pending thereby satisfying the CPL §195.10 requirement of a defendant being "held for Grand Jury action on a felony complaint." That reasoning is eviscerated by the holding in Boston, supra, which held unequivocally that a defendant's waiver of indictment attempted after a Grand Jury actually indicts is generally invalid under CPL §195.10(2)(b) because the plain words of the statute require a waiver to be made "prior to the filing of an indictment."

The People's argument is further undercut by the recognized common practice in this court. This court is unaware of any example, (and the People are free to present an example, if they can,) of a case where an indictment has been filed, the case sent to Supreme Court, and later, the People go back to Criminal Court on an unindicted charge in a felony complaint and attempt to proceed upon that charge. In fact, it is this court's experience that when a Certificate of Affirmative Grand Jury action is filed in the criminal court, and a defense attorney attempts to make a bail application in that court, the People's usual response is that the criminal court is divested of all jurisdiction to take any action on a case in which a Certificate of Affirmative Grand Jury action has been filed. The People always insist that all further motions in an indicted case must be made in Supreme Court. This is not to say that the administrative customs and practices of a particular court define a legal interpretation; nonetheless it is informative in terms of fashioning an interpretation of the understanding of what "pre-indictment status" means.

The People also argue that the facts of this case more closely resemble the momentary legal deviation of People v. D'Amico, supra, than Boston, supra. As a threshold matter, this court notes that a review of the cases in this area demonstrates the appellate Court's attempt to constrict D'Amico to its facts; clearly, D'Amico is an anomaly in this area. This case is easily distinguishable from D'Amico. As the Court of Appeals took pains to say in Casdia, supra, "[this case] is factually and legally inapposite and distinguishable from D'Amico. In D'Amico, the defendant was formally held for Grand Jury action on a new felony complaint which charged him with a different crime from those previously charged. He was therefore placed in a formal pre-indictment procedural track, which is CPL §195.10's precise qualifying prerequisite. Here, as in Boston, we are faced with a significantly different situation. The defendant was already subject to an extant, at least partially valid indictment and no formal pre-indictment status existed.[Emphasis Added]" The Court of Appeals criticized the People's approach in Casdia, "as a tautology...it would effectively overrule the strict interpretation applied and demanded by Boston with respect to the use of Superior Court Informations." Id.

The People's argument in this case is equally tautological. The plea agreement cobbled together in this case was designed to prosecute and quickly conclude the criminal proceeding. It strains credulity that anyone at any time believed that the defendant was being "held for Grand Jury action" on the remaining Assault in the First Degree count in the felony complaint. From this court's experience, once a case has been indicted, the People never look back - - unless forced to do so by a Supreme Court Justice (typically on a 190.50 motion) or by an Appellate [*9]Court. For all of the foregoing reasons, I find that the waiver procedure of CPL §195.10 was unavailable in this case, and its use rendered the plea upon it jurisdictionally defective. Accordingly, the judgment entered on SCI number 15082/91 is reversed, the waiver of indictment, plea, and sentence upon that single count of Assault in the First Degree are vacated.

The foregoing constitutes the Decision and Order of this court.

Dated: March 28, 2005

New York, NY

________________________

William A. Wetzel