People v Lopez
Annotate this CaseDecided on April 19, 2006
Criminal Court, New York County
The People of the State of New York, Plaintiff,
against
Mariah Lopez, aka Brian Lopez, Defendant.
2005NY042289
The People were represented by
Ayanna Sorett, Esq.
Assistant District Attorney
New York County District Attorney's Office
One Hogan Place
New York, New York 10013
The defendant was represented by
Gregory A. Blackman, Esq.
65 Broadway
Suite 841
New York, New York 10006
Anthony J. Ferrara, J.
The defendant, a transgendered (male to female) individual, seeks to withdraw her guilty plea. She alleges that her plea was coerced by her pre-trial incarceration in a New York City correctional facility which failed to provide adequate prescription drugs prescribed as part of her gender transformation and by her classification and repeated treatment as a male while in custody. For the reasons set forth below her motion is denied.
The defendant had been receiving medically supervised hormone therapy for over three years and was awaiting sexual reassignment surgery at the time of her arrest. She was charged with loitering for the purpose of prostitution (PL § 240.37[2]) at 4:50 a.m. on the corner of Horatio Street and Greenwich Street. At arraignment on June 16, 2005, defense counsel waived motions and the Court put the case on the calendar for trial on June 28, 2005. As of June 16, 2005, the defendant had eleven prior arrests and dispositions, including two which led to convictions after guilty pleas for loitering for the purpose of prostitution (PL § 240.37[2]) and one which led to a conviction after a guilty plea for prostitution (PL 230.00). The Court set $500 cash bail. At the defendant's request, the Court also ordered prescription injectable hormones and medications to be given to the defendant while she was incarcerated. On June 28, 2005, the defendant appeared in All Purpose Part C, pleaded guilty to the charge and was sentenced to eighteen days jail. [*2]
On August 16, 2005, the defendant's original attorney filed a motion, pursuant to Criminal Procedure Law 440.10, to withdraw her guilty plea. In subsequent filings, the defendant asserted that her plea was neither made in a knowing and intelligent manner, nor was the plea entered voluntarily. In support of this motion her current defense counsel [FN1] submitted to the Court: 1) a detailed motion ("Defendant's Motion") to withdraw defendant's guilty plea filed on December 22, 2005; 2) a sworn affidavit ("Defendant's Affidavit") of her treatment while incarcerated at Rikers Island Detention Complex ("Rikers") and asserting her innocence filed on January 26, 2006 and; 3) a notarized letter from Lawrence Sheff, M.D. ("Dr. Sheff's Letter"), filed on February 14, 2006, who diagnosed the defendant on July 7, 2005 with Post Traumatic Stress Disorder resulting from her incarceration.[FN2] Exhibits attached to Defendant's Motion contain copies of medical records from Rikers relating to her treatment and medications provided.
In her motion, defendant complains that while in custody she did not receive the two hormones Premarin and Delestrogen (which were to be administered by injection) and two prescription oral medications Spiralactone and Depo-Provera (Defendant's Motion 7). Defendant submitted several pages of medical records from Rikers. (Defendant's Motion Exhibit D). In her affidavit defendant also complains that she was treated as a male while she was incarcerated (Defendant's Affidavit 5). Because she did not receive her medications the defendant asserts that she was under "a tremendous amount of stress, duress and discomfort" (Defendant's Motion 7), and that she became "stressed, depressed, and mentally unstable" (Defendant's Motion 16). Defendant claims that the forced withdrawal from her medication and her treatment resulted in her being "physically and emotionally compelled beyond intellectual reason to get out of jail as quickly as possible to relieve myself from the unbearable and dehumanizing treatment I was experiencing at the hands of the Department of Corrections." (Defendant's Affidavit 6). Dr. Sheff's letter describes his conclusions after his examination of the defendant on July 7, 2005. Dr. Sheff found that the defendant was suffering from Post Traumatic Stress Disorder resulting from her period of incarceration at Rikers. The letter concludes that "from a psychological point of view, a not-guilty' plea was not an option, since this would have led to her continued incarceration." The defendant also states that, despite her guilty plea, she was innocent. (Defendant's Affidavit 7).
In response, the People point out, defendant's medical records show that the treating physician at Rikers noted on June 20, 2005 that defendant would begin Premarin and Spiralactone and that a refill for all four prescriptions was faxed to Rikers on June 23, 2005 from the defendant's own physician, Michael K. Bartalos, M.D. (Defendant's Motion Exhibit D). Also, included in Defendant's Motion was a Rikers Mental Health and Hygiene Form dated June 22, 2005 that noted defendant was receiving hormone medication at minimal dosage (Defendant's Motion Exhibit D). Additionally, a progress note dated June 24, 2005 states that the Rikers [*3]physician had consulted the Pharmaceutical Director concerning the medications and was following Rikers policy concerning the permitted dosages. Although the record is not clear as to which of her medications and what dosages defendant received, the Court notes that the medical staff at Rikers did make efforts to supply the defendant with her medication within their policy guidelines. For the purposes of deciding this motion the Court assumes that the defendant was not given all of her medications at her precise prescribed dosages during her twelve day incarceration.
On June 28, 2006, the defendant appeared before this Court, pleaded guilty and the following allocution took place:
COURT OFFICER:Calendar 63, prison matter, Mariah Lopez.
MR. BAJUK: Andre Bajuk, B-A-J-U-K, on behalf of Ms. Lopez, New York County Defender Services.
THE COURT: People, are you ready for trial?
MR. SATO: Your, Honor, on a plea to the charge, People recommend 30 days jail.
MR. BAJUK: Judge, before we get to that, I was going to renew a motion that I had made at arraignments as to facial insufficiency. I don't know if the complaint makes out loitering for prostitution. The officer who wrote this up, essentially, it just says that he has made several or about 300 arrests for prostitution in the past, and it says that he saw my client approaching cars and passerby on the street and that is supposedly for the purposes fo prostitution. and in fact, she actually had supplies she was handing out flyers, flyers which she had at arraignments that she showed me and some others which she says were confiscated.
THE COURT: So have a trial. The cops say she is an expert, that she was engaged in prostitution and her defense is she was giving up flyers.
MR. BAJUK: In the alternative, Judge, I was going to ask you if you would consider releasing her on her own recognizance. She has been in custody for 12 days. She has a representative here today from the Foster Care Facility that she is staying in, St. Christopher. She has made all of her court appearances. She assures me that the one warrant that she had in Queens case was some kind of mistake of some sorts. She does have a lawsuit pending against the City for, well, I believe it is against the Police Department and the Department of Corrections. And she has had some issues with getting proper medical attention while she was in custody. Judge, I would ask if you would consider releasing her on her own recognizance.
THE COURT: No, I am not going to change the bail. But I will find a place for this case to be tried. Second call. We will find a part.
MR. BAJUK: Judge, my client now tells me that she does want to go ahead and plead guilty if you would consider allowing her to plead to time served. She has already be in jail for 12 days. It is a class B misdemeanor, it is a B misdemeanor, that's why we are - -
THE COURT: So if I [sentence] her to what was the offer here, 30 days?
MR. SATO: It is 30 days jail, your Honor.
THE COURT: If I sentenced her to 20 days jail, would she get out right away Mr. Bajuk?
MR. BAJUK: I am not sure.
THE COURT: I will sentence her to 18 days. The record will show an 18 day jail sentence.
MR. BAJUK: Thank you, Judge. My client has authorized me to enter a plea of guilty to 240.37 subsection 2, loitering for prostitution, a class B misdemeanor with the understanding [*4]that she will receive 18 days jail.
THE COURT: Do you want me to enter judgment on the surcharge?
MR BAJUK: Yes, your Honor.
THE COURT: All right. Ms. Lopez, your lawyer tells me that you want to plead guilty to this class B misdemeanor; is that right?
THE DEFENDANT: Yes.
THE COURT: Have you had a chance to talk with him about this plea arrangement that he has made for you?
THE DEFENDANT: Yes.
THE COURT: Has he answered all of you[r] questions to your satisfaction?
THE DEFENDANT: Yes.
THE COURT: Do you understand that by pleading guilty you give up important rights in this case, your lawyer had argued that the case is insufficient, you are giving up your right to contest that in front of a judge, do you understand that?
THE DEFENDANT: Yes.
THE COURT: Do you admit that you engaged in the activity, that you were loitering for the purposes of prostitution, you weren't giving out fliers, you were approaching people to try to sell your body or other similar services; is that true?
THE DEFENDANT: Yes.
THE COURT: Is there anything you would like to add before I sentence you?
THE DEFENDANT: No.
THE COURT: The sentence is 18 days jail, and judgment is entered on the surcharge. Good Luck.
COURT OFFICER: Let the record reflect defendant has been handed her right to appeal.
The Court finds, considering all the relevant circumstances that defendant entered her plea knowingly, voluntarily and intelligently. The Court also finds that defendant was legally competent to enter her plea and that, although admittedly under stress, the defendant was neither coerced, nor overcome by duress, to enter her plea. Furthermore, defendant's request for a hearing is denied (see People v. Tinsley, 35 NY2d 926 [1974]; People v. Hanley, 682 NYS2d {255 AD2d 837} 245 [3d Dept 1998], leave denied 685 NYS2d 428; CPL 440.30[4]).
It is well settled that a guilty plea will be upheld as valid if it was entered knowingly, voluntarily and intelligently (see Brady v. U.S., 397 U.S. 742, 748 [1970]; People v. Flumefreddo, 82 NY2d 536, 543 [1993]). The plea record must demonstrate "an intentional relinquishment or abandonment" of defendant's constitutional rights (see Johnson v. Zerbst, 304 U.S. 458, 464 [1938]; People v. Rodriguez, 50 NY2d 553, 557 [1980]). The Court of Appeals has further elaborated that there is no "uniform mandatory catechism of pleading defendants" but that all the relevant circumstances surrounding the plea must reflect that the defendant knowingly, voluntarily and intelligently relinquished his or her rights (see People v. Harris, 61 NY2d 9, 16-17 [1983]). Relevant circumstances include the "seriousness of the crime, the competency, experience, and actual participation by counsel, the rationality of the plea bargain' and the pace of the proceedings in the particular criminal court" (Id. at 19). However, claims that the plea was not entered into knowingly and voluntarily survive a guilty plea (see People v. Seaberg, 74 NY2d 1, 10 [1989]), and claims of defendant's incompetence survive a guilty plea (see People v Armlin, 37 NY2d 167, 172 [1975]). [*5]
A defendant is competent if a defendant has sufficient ability to consult with his or her attorney with a reasonable degree of understanding and possess a rational and factual understanding of the proceedings against him or her (see Dusky v. United States, 362 U.S. 402, 403 [1960]; CPL § 730[1]). The United States Supreme Court has held that the competency standards for pleading guilty and standing trial are the same (see Godinez v. Moran, 509 U.S. 389 [1993]). A defendant is presumed competent (see People v Gelikkaya, 84 NY2d 456, 459 [1994][finding that neither defendant's conduct at the Grand Jury proceeding nor the psychiatric examinations conducted subsequent to that time rebutted the presumption that defendant was competent]), and a court is under no obligation to issue an order of examination (CPL 730.10 [2]) unless it has "reasonable ground ... to believe that the defendant was an incapacitated person" (see People v Armlin, 37 NY2d 167, 168 [1975]). Moreover, a defendant is not entitled, as a matter of right, to have the question of mental capacity passed upon if the court is satisfied from the available information that there is no basis for questioning the defendant's competency (see Armlin, 37 NY2d at 171). The Trial Judge's opportunity to observe a defendant's behavior personally is entitled to some deference and weight (see People v Russell, 74 NY2d 901, 902 [1989]).
The Court finds, considering the relevant circumstances here, that the defendant was competent to enter her guilty plea. A person may be mentally ill and still legally competent (see People v. Alexander, 161 AD2d 1035 [3d Dept 1990][depression does not inevitably incapacitate a defendant]; People v. Lacher, 59 AD2d 725 [2d Dept 1977][schizophrenia may not render defendant incompetent]). Although the Court recognizes that being incarcerated is stressful and the particular concerns of the defendant in this case arguably added to that stress, the defendant's behavior at her plea allocution demonstrated competency (see People v. Polimeda, 198 AD2d 310 [1st Dept 1993][defendant's responses during plea allocution indicated fitness]; People v. Hall, 168 AD2d 310 [1st Dept 1990][guilty plea of defendant who attempted suicide while incarcerated before plea upheld because his answers during plea allocution were more than monosyllabic responses']; People v. Rogers, 163 AD2d 337 [2d Dept 1990][increased anxiety levels and stronger suicidal tendencies as the trial date approached did not establish that the defendant lacked the capacity to understand the proceedings against him or that he was unable to assist in his defense at plea]). The allocution indicates a clear understanding of the proceedings and the elements of the bargain. Defense counsel first moved to dismiss the information as facially insufficient, next requested a change in bail and finally, only after the Court was prepared to send the case to trial, did the defendant inform her lawyer that she wished to plead guilty. The plea colloquy shows that when confronted with the prospect of an immediate trial, the defendant bargained for a reduced sentence equivalent to time served. This, coupled with defendant's prior experience in the criminal justice system can be reasonably interpreted as an intricate understanding of the bargain, the discussions and the proceedings. Additionally, there is no evidence on the record that suggests the deprivation of her medications affected defendant's cognition nor was there any allegation that the deprivation would impair her mental facilities in any way (see People v. Gomez, 571 NYS2d 838 {174 AD2d 949} [3d Dept 1991]; People v. Martin, 614 NYS2d 150 {204 AD2d 353} [2d Dept 1994][Court properly denied defendant's motion to withdraw plea without a hearing when defendant's claim of incompetence due to lack of medication was unsupported by the record]). The Court finds that the defendant was legally competent during her plea allocution. [*6]
The Court also finds that defendant's plea was made knowingly, voluntarily and intelligently and not the product of duress. Defendant's claim that the deprivation of her medications, her treatment as a male while incarcerated and her doctor's opinion that she was suffering from Post Traumatic Stress Disorder resulting from her incarceration do not amount to duress sufficient to vacate her plea (see People v. Hanley, 682 NYS2d 245 {255 AD2d 837} [3d Dept 1998], leave denied 685 NYS2d 428 [Court properly refused defendant's motion to vacate his guilty plea after allegations of fear of abuse from prison guards when defendant made complete factual allocution after being advised of the consequences of entering a plea by the court]; People v Flakes 240, AD2d 428 [2d Dept 1997] [Defendant's assertions of innocence, family pressures, and emotional distress did not warrant withdrawal of his guilty plea]; People v. Young, 257 AD2d 764 [3d Dept 1999][motion to withdraw guilty plea because given under duress and confusion denied when, during the extensive plea colloquy, the defendant capably responded to questions, stated on the record that he had conferred with his attorney regarding the ramifications of his plea and that he was entering his guilty plea freely and voluntarily]; People v. Merck, 213 AD2d 905 [3d Dept 1995][defendant not entitled to withdraw guilty plea due to stress of situation after trial court's proper inquiry into defendant's understanding of proceedings and rights he was forfeiting]). Nothing brought to the attention of the Court by the defendant rises to the level of duress that would coerce an improper guilty plea.
Defendant cites People v. Flowers (30 NY2d 315 [1972]) in support of her motion. Flowers held that, as a matter of law, a plea is tainted if was motivated in part by barbarous prison abuses directly involving the defendant (Flowers, 30 NY2d at 319). However, the uncontradicted facts in Flowers upon which the Court of Appeals based its decision to grant the motion to withdraw defendant's guilty plea are far beyond the facts here. In Flowers, the defendant was sexually abused, beaten, and his attorney testified at the plea withdraw hearing that the warden, captain and several guards at the jail said the defendant was in potential danger of his life (Id. at 318). Furthermore, the jail had been the scene of riots and a take-over by the inmates during defendant's incarceration (Id.). Additionally, the defendant had filed several motions seeking transfer reciting the abuse he had received (Id.). When the defendant finally pleaded guilty he was concerned with whether and how soon he would be removed from the local jail (Flowers, 30 NY2d at 318). In Flowers, the court transcripts and the information conveyed by defendant's lawyer, which were never disputed, demonstrated that to some extent defendant's guilty plea was occasioned by duress and should not stand (cf. People v. Nixon, 21 N Y 2d 338, 344; People v. Serrano, 15 N Y 2d 304, 310). In this case, the defendant has not alleged physical threats or abuse and there were no allegations of potential physical danger or loss of life. Here, the defendant alleges that she did not receive her prescribed hormone treatments, she was treated as a male and she was stripped of her female clothing including her underwear and bra (Defendant's Affidavit 5). These allegations, taken in the light most favorable to the defendant, amounted to verbal taunting and disregard of her chosen gender, not physical abuse. While the Court recognizes that the defendant, like most incarcerated persons, wanted to get out of jail as soon as possible, that desire neither rises to the level of duress present in Flowers, nor approaches a level where a hearing is necessary in order to determine whether the plea was entered into knowingly, intelligently and voluntarily and uncoerced.
The Court further notes that this Court may take judicial notice of its own records (see People v. Dritz, 259 A.D. 210 [2d Dept 1940]; People v. Perez, 195 Misc 2d 171 [Crim Ct, New [*7]York County, 2003]; see also Prince, Richardson on Evidence § 9-301 [Farrell 11th ed]). These records reveal not only that this defendant has pleaded guilty to similar charges three times previously but also that on March 19, 2006, while this motion was pending, the defendant again pleaded guilty to loitering for the purpose of prostitution (People v. Mariah Lopez, Docket No. 2006NY01880). The defendant's familiarity with the criminal justice system belies her assertion that her plea was not valid and supports the conclusion that she was well aware of her rights and the relinquishment of them when she pleaded guilty (see People v. Nixon, 21 NY2d 338, 353 [1967]; People v. Frederick, 45 NY2d 520, 525 [1978]).
In denying defendant's motion to withdraw her guilty plea, the Court assumes, that the defendant was not given the exact dosages of some of her prescribed medications, that despite her stated gender preference she was treated as a male while incarcerated, and that she was diagnosed with Post Traumatic Stress Disorder after her incarceration. Nevertheless, the Court finds that her plea was made knowingly, intelligently and voluntarily and not the product of duress.
Defendant's motion is denied.
This case is on the calendar in Part C on May 1, 2006. A copy of this opinion is being mailed to the parties on April 19, 2006.
This opinion constitutes the decision and order of the Court.
Dated:New York, New York
April 19, 2006
________________________
ANTHONY J. FERRARA
Judge of the Criminal Court
Footnotes
Footnote 1:On August 29, 2005 present counsel was assigned to represent the defendant for the purpose of her motion to withdraw her guilty plea.
Footnote 2:The Court has also considered defendant's two page letter handed up to the Court at defendant's last appearance on March 9, 2006.
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