People v Woods

[*1] People v Woods 2006 NY Slip Op 51059(U) [12 Misc 3d 1164(A)] Decided on May 8, 2006 Supreme Court, Bronx County Massaro, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 8, 2006
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Charles Woods, Defendant.



2475/2002



For the People of the State of New York

The Honorable Robert T. Johnson

District Attorney, Bronx County, New York

By:Jena Rizzo-mcclure, Esq.

Assistant District Attorney

For Charles Woods

Matthew P. Walsh, Esq.

Dominic R. Massaro, J.

Defendant, Charles Woods, was convicted of Assault in the Second Degree (Penal Law § 120.05 [2]), pursuant to a plea agreement entered into on November 25, 2002. He was to be sentenced as a Second Violent Felony Offender to a determinate term of imprisonment of five years if he returned to court on the sentencing date of December 19, 2002. If he failed to return to court on that date, he was to receive a sentence of a determinate term of imprisonment of seven years. Defendant failed to return to court on the sentencing date, but, rather, was involuntary returned on October 27, 2005, following a parole revocation. He now moves to withdraw his plea of guilty pursuant to Criminal Procedure Law § 220.60 (3) on the grounds that: he did not understand the plea proceeding; the Court asked him questions that are for a jury to decide; and in the plea allocution, he indicated that his hands were the deadly weapon or dangerous instrument used, which is in direct contravention to the law in this State holding that a part of the body cannot constitute such a weapon or instrument. In the alternative, because the allocution indicated that no deadly weapon nor dangerous instrument was used, Defendant moves to have his conviction reduced to Assault in the Third Degree (Penal Law § 120.00 [1]). The motion is denied.

Chronology

Prior to his arrest in this matter, Defendant had one violent felony conviction, three non-violent felony convictions, eight misdemeanor convictions and one violation conviction. All but one of the non-violent felony convictions were the results of plea agreements.

Defendant was arrested in the current matter on May 5, 2002, and an indictment was filed on May 16, 2002, charging him with the crimes of Assault in the Second Degree (Penal Law § 120.02 [2]), Criminal Contempt in the First Degree (Penal Law § 215.51 [b] [v]), Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01 [2]), and Endangering the Welfare of a Child (Penal Law § 260.10 [1]). According to the Felony Complaint, on April 25, 2002, at approximately 7:50 a.m., inside 2160 Holland Avenue, Apartment A14, Defendant repeatedly punched Sabrina Navedo with a closed fist that was wrapped in a chain, causing Ms. [*2]Navedo to loose consciousness, develop speech problems, and suffer bruising, swelling, discoloration of her forehead and arms, headaches, loss of strength in her left arm, and loss of her short term memory. Not only was this incident witnessed by Ms. Navedo's then nine-year old son, but, in addition, at the time of this incident Ms. Navedo had a valid order of protection against Defendant, which he acknowledged receiving, that directed him to refrain from assaulting, striking, harassing, menacing, intimidating or threatening her.

On November 25, 2002, Defendant pled guilty to the top count in the indictment, namely Assault in the Second Degree, in satisfaction of the entire indictment, with the sentencing understanding aforementioned.

In the course of the allocution, after Defendant was duly sworn and agreed with his attorney's statement that he wished to withdraw his plea of not guilty and plead guilty to the abovementioned charge, he then indicated that: he was 47 years-old at both the time of the offense and the time of his plea; he read, write and was conversant in the English language; he was not under the care of any physician at the time of his plea, had never been under the care of a specialist such as a psychiatrist or a psychologist, and had never been treated, confined or institutionalized for a mental or emotional disorder or drug or narcotic addition; he was in generally good physical and mental heath on the day of the plea agreement; and he had taken no drugs or alcohol during the preceding twenty-four hours. Defendant then stated that he knew that he had the right to go to trial, in which he would have been represented by defense counsel, and at the trial, his attorney would have the opportunity to cross-examine any of the witnesses the People brought to testify against him. Defendant further indicated that he knew that he would be tried by a jury of twelve citizens of Bronx County, that he and defense counsel would participate in selecting those twelve individuals, all twelve jurors would have to unanimously agree beyond a reasonable doubt that he committed each and every element of each crime charged against him in order to be found guilty of that crime, and he would not be found guilty of a crime if just one juror was not convinced beyond a reasonable doubt that he committed even a single element of a crime. Defendant then stated that he understood that his guilty plea had the same effect as his being found guilty after trial of the charge to which he pled. Defendant further stated that he was entering his guilty plea freely, voluntarily, after thinking about it, discussing it with counsel, deciding that it was the best manner in which to dispose of this case in light of all of the circumstances, and because he was guilty of the crime to which he pled.

The People then indicated that had the case proceeded to trial, they were prepared to prove that on or about April 25, 2002, in Bronx County, "with intent to cause physical injury to Sabrina Nevedo, Defendant did cause such injury to her by means of a deadly weapon or dangerous instrument, that being a metal chain and that he punched her about the face and head causing said physical injury" (Tr. at 9). Defendant then stated that, with the intent to inflict harm and physical injury upon Ms. Nevedo, on the date in question, he punched, slapped and pushed her, inflicting injury on her, namely causing her to bleed and loose consciousness, and this incident occurred in violation of an order of protection which directed him not to cause any physical harm to her.

The Court then asked Defendant if he was "guilty of[,] number one[,] violating the protection order; number two, going beyond speaking with this woman to pushing, shoving, slapping, punching as you said and also there's, you know, the chain, am I correct? And a chain was present there and was used in a manner that cause her some injury" (Tr. at 14-15) (emphasis added). Defendant answered this query by stating "Yes, sir" (Tr. at 14) (emphasis added).

Following this allocution in which Defendant acknowledged that a chain was used and caused the injuries at issue, the parties agreed that "hands are a dangerous instrument . . . [and] became a deadly weapon" (Tr. at 15). However, this agreement followed the abovementioned colloquy, which made it clear that the parties were referring to the hand being wrapped in a chain as becoming and constituting a deadly weapon or dangerous instrument.

The Court stated that it was satisfied with the plea based on the proof of the People, Defendant's allocution, and because Defendant "wishes the Court to accept his plea [be]cause he [*3]is fearful of being convicted after trial and face a more serious period of punishment and longer term [of] incarceration" (Tr. at 12). Indeed, Defendant, a persistent felony offender, faced a sentence of an indeterminate term of imprisonment of from twenty-five years to life. See Penal Law § 70.10. The Court then reiterated that Defendant was to receive a determinate sentence of five years if he returned on the date of sentencing and that it was allowing him to be at liberty until that time so that he could spend the Thanksgiving holiday with his family. However, he would receive a determinate term of imprisonment of seven years if he did not return on that date. Defendant then agreed to waive his right to appeal and the Court noted that its leniency in allowing Defendant to take this plea was based, in part, on his acceptance of a waiver of his right to appeal.

After Defendant selected the sentencing date of December 19, 2002, the Court noted that Defendant had "been through this before" (Tr. at 18). The Temporary Order of Protection was then continued and Defendant was arraigned as a Second Violent Felony Offender, namely that he acknowledged that he was constitutionally convicted on January 21, 1987 in New York County of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 [4]), and sentenced to an indeterminate term of imprisonment of from one to three years. Defense counsel noted that Defendant had served a sufficient term of imprisonment since that conviction to toll it to within the ten-year period prescribed by Penal Law § 70.04. After being involuntarily returned on a warrant following his apprehension for a parole violation, Defendant filed the instant motion.

Discussion

In deciding a CPL § 220.60 (3) motion to withdraw a guilty plea, it is well settled that "[t]rial judges are vested with discretion . . . because they are best able to determine whether a plea is entered voluntarily, knowingly and intelligently" (People v. Alexander, 97 NY2d 482, 485 [2005]), and such motions "will not be granted merely for the asking. . . . The interest of finality requires no less." Alexander, supra. See also People v. Frederick, 45 NY2d 520, 525 (1978) ("Only rigorous adherence by the courts to a policy of affording guilty pleas a great measure of finality will immunize plea negotiations from indiscriminate potshots."). In addition, in determining such motions, "the Judge to whom the motion to vacate is addressed should be entitled to rely on the record before him." People v. Ramos, 63 NY2d 640, 642-43 (1984).

It is well settled that the "test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203, 208 (1985), quoting, North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162, 168 (1970). See also Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); People v. McDonald, 1 NY3d 109 (2003). However, "a criminal court is in no position to advise on all the ramifications of a guilty plea personal to a defendant." People v. Ford, 86 NY2d 397, 402-03 (1995). See also People v. Moisset, 76 NY2d 909, 910-11 (1990) ("trial courts are not required to engage in any particular litany during an allocution in order to obtain a valid guilty plea in which defendant waives a plethora of rights"). Indeed, as more fully explained in People v. Fiumefreddo, 82 NY2d 536, 543-44 (1993): There must be an affirmative showing on the record that the defendant waived her constitutional privilege against self-incrimination and her rights to a jury trial and to be confronted by witnesses. . . . This Court has consistently rejected a formalistic approach to guilty pleas, preferring instead to leave the ascertainment of whether the defendant has entered the plea voluntarily, knowingly and intelligently to the trial court's "sound discretion exercised in cases on an individual basis" (People v. Nixon, 21 NY2d 338, 355 [1967], cert. denied, sub nom., Robinson v. New York, 393 U.S. 1067, 89 S. Ct. 721, 21 L. Ed. 2d 709 [1969]). Thus, we have said repeatedly that there "is no [*4]requirement for a uniform mandatory catechism of pleading defendants'" (People v. Harris, 61 NY2d 9, 16 [1983], [quoting, Nixon, supra, at 353]).

See also Harris, supra, at 16-17 ("[T]his court has never held . . . [that] a guilty plea is invalid solely because the Trial Judge failed to specifically enumerate all of the rights to which the defendant was entitled and to elicit from him or her a list of detailed waivers before accepting the guilty plea. . . . [A] rigorous and detailed colloquy . . . would be an unnecessary formalism. 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 are among the many factors which the Trial Judge must consider in exercising discretion."); People v. Guerrone, 208 AD2d 383, 383-84 (1st Dept. 1994) ("Nor is there merit to defendant's claim that his guilty plea does not satisfy the knowing, voluntary and intelligent standard because . . . the court failed specifically to state that if he were to go to trial, the People would have to prove his guilt beyond a reasonable doubt and that a guilty verdict would have to be unanimous. . . . [T]he precise contours of the plea are left to the sound discretion of the court. . . . [T]he totality of the circumstances confirm that defendant . . . was fully aware of his rights and the consequences of his guilty plea. . . . [T]he court was sufficiently familiar with this defendant and the facts of this case to summarily dispose of defendant's last-ditch effort to avoid detention."), lv. denied, 89 NY2d 1011 (1994).

Furthermore, in Alford, supra, at 31-37, 91 S. Ct. at 164-67, 27 L. Ed. 2d at 168-71, the Supreme Court opined that "while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. . . . Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when . . . a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt." See also People v. Flores, 237 AD2d 128, 129 (1st Dept. 1997) ("factual issues are waived by . . . guilty plea"), lv. denied, 90 NY2d 857 (1997).

The case at bar is similar to People v. Victor, 262 AD2d 872, 873-74 (1st Dept. 1999), lv. denied, 94 NY2d 830 (1999), in which the First Department held that: [D]efendant entered a knowing, intelligence and voluntary guilty plea and waiver of the right to appeal. . . . The transcript . . . discloses that defendant, while represented by counsel, was advised of his rights and the consequences of pleading guilty and communicated his understanding to the court. Defendant further indicated that he had not been threatened, coerced or pressured in any way into entering into the plea, nor was he under the influence of alcohol, controlled substances or medication. . . . Inasmuch as the plea and waiver were knowingly, voluntarily and intelligently made, defendant is precluded from challenging the sufficiency of the allocution. . . . Even if we addressed his claims, . . . [i]n pleading guilty, . . . defendant was not required to recite all of the elements of the crime nor was . . . [the] Court required to elicit from defendant a narrative of events.

Here, after agreeing with his attorney's statement that he wished to withdraw his plea of not guilty and plead guilty to Assault in the Second Degree in satisfaction of the entire indictment, Defendant, a forty-seven year-old individual with twelve prior guilty pleas who did not contest that he had "been through this before," acknowledged that he was conversant in the English language and had no physical or mental impediments to his plea nor any alcohol or controlled substance use that would affect his plea. Defendant further stated that he understood that he was waiving his right to go to trial and that, by so doing, was giving up his rights to [*5]confront any witnesses brought against him and participate in jury selection. Defendant also indicated that he understood that his plea had the same effect as being found guilty by a jury and that, if he went to trial, he could not be found guilty unless his guilt of every element was proven to a unanimous jury beyond a reasonable doubt. Defendant further noted that he was pleading guilty freely, voluntarily, after thinking about it, after discussing it with his attorney, after determining that it was the best manner in which to dispose of the case in light of all of the circumstances, and because he was, in fact, guilty of the charge to which he pled. The Court also noted that one of the reasons for Defendant pleading guilty was his fear of facing a longer term of imprisonment if he was unsuccessful at trial. Then, after indicating that he understood his sentence, Defendant waived his right to appeal and was adjudicated as a Second Violent Felony Offender.

As such, "[n]othing in the record of the plea allocution called into question the voluntary, knowing and intelligent nature of defendant's bargained-for plea." People v. Seeber, 4 NY3d 780 (2005). Indeed, "[t]he court was able firsthand to assess whether defendant was alert and knowledgeable enough to plead guilty voluntarily. Under oath defendant told the court that, after consulting with counsel, he understood the nature of the proceedings and that his guilty plea entailed a waiver of various rights. . . . There was not the slightest indication that defendant was uninformed, confused or incompetent." Alexander, supra, at 486. See also Frederick, supra, at 525-28 ("[T]he court took painstaking measures to insure that the defendant fully understood the consequences of his guilty plea. . . . [T]he trial court engaged in tedious questioning of defendant to insure that he fully comprehended the consequences of his guilty plea."); People v. Contreras, 219 AD2d 495 (1st Dept. 1995) ("motion to withdraw the plea is refuted by the plea minutes, which show that defendant pleaded guilty, after an extensive allocution, because he was guilty and wanted to avoid the risk of a longer sentence"), lv. denied, 87 NY2d 845 (1995); People v. Hannon, 209 AD2d 319, 321 (1st Dept. 1994) ("Defendant knowingly acknowledged his desire to plead guilty; . . . acknowledged and waived his right to a trial by jury, where the People would have the burden of proving his guilt; and acknowledged and waived his right to question the People's witnesses, his right to call witnesses, and his right to testify. Defendant further stated that he was pleading guilty voluntarily, that no one had forced him to enter the plea."), lv. denied, 85 NY2d 862 (1995). "[N]or is there any credible indication that defendant misapprehended the nature of the charges or the consequences of the plea." People v. Muncey, 214 AD2d 432, 433 (1st Dept. 1995), lv. denied, 86 NY2d 783 (1995).

Moreover, the Court's conclusion in this matter is also based on its "own recollection of defendant's normal demeanor . . . [at the] plea allocution," People v. Clarke, 251 AD2d 7 (1st Dept. 1998). In addition, "[t]he record also establishes that the court clearly informed defendant of the possible consequences of a violation of the plea conditions." People v. Kingston, 246 AD2d 316 (1st Dept. 1998), lv. denied, 91 NY2d 974 (1998). Furthermore, as noted by the Court of Appeals in Alexander, supra, at 486, defendant's familiarity with the criminal justice system speaks volumes. He is a veteran offender well oriented with criminal proceedings." See also Frederick, supra, at 525 ("Defendant was not a novice in criminal affairs and was, therefore, schooled in the nature of criminal proceedings. Only after consultation with his attorney and detailed explanations by the court did defendant tender his guilty plea. There is no basis for assuming that defendant was not cognizant of the legal implications and personal repercussions of his action."); People v. Miller, 42 NY2d 946, 947 (1977) ("as a recidivist, the defendant was experienced in the ways of criminal proceedings and not unaware of the possible consequences of trial").

Therefore, not only is Defendant's claim that he did not understand the plea proceeding baseless, but, in addition, as he pled guilty, there were no issues for a jury to decide, despite his current contention to the contrary. See People v. Taylor, 65 NY2d 1, 5 (1985) ("a guilty plea signals defendant's intention not to litigate the question of his guilt'"), quoting, People v. Lynn, 28 NY2d 196, 201-02 (1971).

As per Defendant's claim that the People failed to establish in the allocution that he used [*6]a deadly weapon or dangerous instrument, it is noted that although the definition of deadly weapon includes metal knuckles (see Penal Law § 10.00 [12]), and dangerous instrument is defined, in pertinent part, as "any instrument, article or substance, . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury" (Penal Law § 10.00 [13]), as explained by the Court of Appeals in People v. Owusu, 93 NY2d 398, 399-401 (1999): [T]he statute's ordinary meaning, its legislative history and our jurisprudence persuade us that an individual's body part does not constitute an instrument under the statute (Penal Law § 10.00 [13]). . . . One's hands . . . are not, in common parlance, "instruments." . . . Neither the Legislature nor the courts . . . have classified a person's hands . . . as a weapon or instrument.

But see People v. Elijah B., AD3d , 2006 WL 946654 (1st Dept. April 13, 2006) ("Under the circumstances of their use, the work boots with which defendant kicked the prone victim constituted a dangerous instrument.").

Determination

In the case at bar, to otherwise raise a failure of allocution claim is illusory. In his allocution, Defendant agreed with his attorney that he wished to withdraw his plea of not guilty and plead guilty to Assault in the Second Degree; he stated that one of the reasons he was pleading guilty to this charge was because he was, in fact, guilty. Defendant did not controvert the People's statement of the facts, namely that he caused physical injury to Ms. Nevedo by punching her with a metal chain, and he acknowledged punching her and causing her to suffer a physical injury. He then stated that the Court was correct in that he used a chain to cause said injuries. Afterwards, the parties agreed that Defendant's hands became a dangerous instrument or deadly weapon, and although the statement, taken in isolation, in an incorrect statement of the law (see Owusu, supra), when reviewing it in context, it is clear that the parties were referring to the hand being wrapped with a chain. Surely, Defendant's hands, so augmented, constituted a deadly weapon (wrapping the chain around the knuckles is equivalent to the weapon "metal knuckles") and/or a dangerous instrument. See People v. Atterbury, 258 AD2d 304, 305 (1st Dept. 1999) ("we find that in his factual allocution he unequivocally admitted his complicity . . . and that the allocution did not cast any doubt on his guilt"), lv. denied, 93 NY2d 922 (1999); People v. Jackson, 224 AD2d 330 (1st Dept. 1996) ("Review of the plea allocution demonstrates that defendant knowingly and voluntarily admitted to the elements of the crime of which he was convicted."); People v. Garcia, 216 AD2d 36 (1st Dept. 1995) ("[T]he record is clear that defendant sufficiently acknowledged the underlying facts to which he pled, and, having admitted the truth of those allegations, it was not necessary that he recite each of the elements of those crimes.").

In any event, as recently explained by the Court of Appeals in Seeber, supra, at 781: [W]e have never held that a plea is effective only if a defendant acknowledges committing every element of the pleaded-to offense . . . or provides a factual exposition for each element of the pleaded-to offense. . . . Indeed, "we have said repeatedly that there is no requirement for a uniform mandatory catechism of pleading defendants" (Fiumefreddo, supra, at 543). Because nothing that defendant said or failed to say in her allocution negated any element of the offense to which she pleaded . . . or otherwise called into question her admitted guilt or the voluntariness of her plea, she provided . . . no basis for . . . the plea's withdrawal.

Similarly, in People v. Moore, 71 NY2d 1002, 1005 (1988), in addition to holding that "merely showing that the defendant did not expressly admit a particular element of the crime in the factual allocution is not sufficient, by itself, to raise a constitutional claim; all of the [*7]circumstances surrounding the plea must be considered to determine whether the defendant understood the nature of the charges against him," the Court of Appeals also held that, in two cases, pleas were valid even though in the first case the allocution did not establish that the defendant possessed a loaded firearm, which was an element of the crime to which he pled, and in the second case, in which the defendant pled guilty to second-degree robbery, "he never admitted or acknowledged that he used force in committing the crime. However, the record indicates that defendant agreed to plead to this charge on advice of counsel, that the prosecutor stated, without dispute, that defendant used knives' and stole money' from the complainant, and that, upon inquiry by the court, defendant agreed that he stole property' from the complainant. This inquiry, coupled with the unrefuted statements of the prosecutor, sufficiently established that defendant did use force, and that he understood the nature of the charges." Id. at 1006. See also People v. Lopez, 71 NY2d 662, 667 (1988) ("Although defendant's responses to one series of questions posed by the court indicated that he may not have intended to cause serious physical injury, that he was merely attempting to defend himself against a knife-wielding aggressor, that he didn't want to hurt' the victim, and that he had feared for her life' throughout the incident, . . . [b]ased upon the expanded allocution, the court accepted the plea, concluding that defendant's behavior clearly evinced an intent to cause serious physical injury . . . and that there was no viable justification defense."). Likewise, in People v. Emanuel, 179 AD2d 356, 356-57 (1st Dept. 1992), lv. denied, 79 NY2d 947 (1992), the First Department explained that: The fact that defendant, earlier in the plea, had made vague statements suggesting that the encounter was consensual a claim defendant apparently voluntarily abandoned without any evidence of coercion by the court or prosecutor does not invalidate the plea accepted on the basis of his subsequent acknowledgment of guilt. There is no evidence . . . to suggest that defendant did not understand . . . and indeed, the court expressly invited defendant at the plea to "feel free" to consult with his attorney . . . during the allocution.

See also People v. Johns, 201 AD2d 337, 338 (1st Dept. 1994) ("That the defendant did not . . . state the facts to establish each and every element of the offense pled to at his allocution does not preclude a finding that . . . [he] understood the charges against him and entered the plea voluntarily."), lv. denied, 83 NY2d 854 (1994); People v. Galvan, 197 AD2d 394, 394-95 (1st Dept. 1993) ("[A]fter the prosecutor recited the underlying facts, . . . defendant admitted the truth of those allegations. . . . [T]hat defendant did not recite all of the elements of the crime did not render the plea invalid.").

Similarly here, even if this statement was to be taken out of context and given more worth than it deserves, this failure to plead to one element of the pleaded-to offense does not make the plea defective. First, it did not negate the prior portions of his expanded allocution, in which Defendant acknowledged each element, nor did it place the knowingness, voluntariness, and intelligence of the plea into doubt. Moreover, it did not refute the statements of the prosecutor, which Defendant did not refute and which sufficiently established that Defendant did use a deadly weapon and/or dangerous instrument. Additionally, Defendant not only failed to voice any objection until this late date, but even waived his right to appeal. Therefore, this subsequent challenge to the factual basis of Defendant's plea must fail as must his attempt to somehow transform the charge to which he pled into a misdemeanor based on the solitary statement he raises in issue.

ORDERED, that Defendant's motion to withdraw his plea of guilty is denied.

The foregoing constitutes the opinion and decision of the Court.

Dated: Bronx, New York

May 8, 2006 [*8]

DOMINIC R. MASSARO,

Justice of the Supreme Court