People v Doe

[*1] People v Doe 2006 NY Slip Op 51600(U) [12 Misc 3d 1196(A)] Decided on August 3, 2006 Nassau County Dist Ct, First District Gartner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 3, 2006
Nassau County Dist Ct, First District

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff(s),

against

MARY DOE, Defendant(s)



XXX-06



Kathleen Rice, D.A., for the People

99 Main Street

Hempstead, NY 11550

Thomas F. Liotti, for the Defendant

600 Old Country Road

Garden City, NY 11530

Kenneth L. Gartner, J.

The defendant pled guilty to one count of violating Penal Law §120.00(2), Assault in the third degree (causing of physical injury via criminal negligence). The defendant now moves, prior to the imposition of sentence, to have the Court impose a sentence of conditional discharge, rather than the term of probation which was agreed to at the time of plea. The defendant, 17 years old at the time of the events underlying the conviction, is about to matriculate at an out-of-state university, and contends that the strictures of probation are unnecessary, and would be unduly burdensome.*

Subsequent to the charges being brought against this defendant, by District Court information, the district attorney's office requested an adjournment pursuant to CPL §170.20(2). That provision states:

At any time before entry of a plea of guilty to or commencement of a trial of [a local criminal court] accusatory instrument [containing a charge of a misdemeanor], the

district attorney may apply for an adjournment of the

*All records with respect to this matter are sealed, pursuant to CPL §720.15(2), as involving a mandatory youthful offender. This opinion has been redacted and modified for publication purposes, so as to maintain confidentiality.

proceedings in the local criminal court upon the ground that he intends to present the misdemeanor charge in question to a grand jury, with a view to prosecuting it by indictment in a superior court. In such case, the local criminal court must adjourn the proceedings . . . . [*2]

This provision is meant to, inter alia, prevent a defendant from pleading to a lower charge, and thus obtaining the protection of constitutional and statutory double jeopardy, when the People believe that more serious charges may be warranted. Over the defendant's objection, this Court granted the adjournment.

A presentation to the Grand Jury was begun. Prior to the case being voted, a plea agreement was struck. The defendant agreed to, and did, plead guilty to a single count in the District Court information. The People then withdrew the defendant from the Grand Jury's consideration.

The plea agreement included the provision that the defendant would be sentenced to probation. It is from this agreement to a probationary term that the defendant now seeks relief.

In People v. Farrar, 52 NY2d 302, 306 (1981), the Court of Appeals affirmed an Appellate Division decision vacating a sentence, and remanding the case for re-sentencing, where the record revealed that the trial judge had imposed a

sentence with which the judge disagreed as being unduly harsh. The judge imposed a sentence with which he disagreed due to a mistaken belief that the terms of the plea

bargain struck between defense and prosecutor required it. The Court there held, with respect to sentencing, that:

[T]he necessary exercise of discretion cannot be fixed immutably at the time of the plea, for the decision requires information that may be unavailable then. Indeed such a view of the plea bargaining process and sentencing function was expressly disapproved in People v. Selikoff, 35 NY2d 227. The court there made clear that the sentencing function rests primarily with the Judge, whose ultimate obligation is to impose an appropriate sentence and who must exercise his or her responsibility at the time of sentencing in the light of information obtained from the pre-sentence report or other source [citation omitted]. Any other rule would negate the distinctions between the court's role in sentencing and accepting a plea and ignore the procedures designed to ensure that an appropriate sanction be imposed. Thus, a sentence negotiated prior to a plea, and in most cases prior to receipt of a pre-sentence report, does not automatically become the sentence of the court. Just as the court must be free to impose a more severe sentence when warranted, the plea and sentence process must leave the court leeway to consider a lesser penalty when the facts and justice so require. No less can be accepted if the integrity of the criminal justice system is to be maintained. Accord, People v. O'Donnell, 113 AD2d 814 (2nd Dep't 1985) (sentence reversed, and case remitted for re-sentencing, where "[i]t is clear that the sentencing Judge did not exercise his discretion in re-sentencing the defendant but, rather, conformed to the terms set forth by the District Attorney as a condition for consenting to the acceptance of the plea.").

This Court is therefore not merely permitted, but required, by direction of the Court of Appeals, to independently consider and assess the sentence and determine whether the bargained-for one is one with which the Court may, in the exercise of discretion, after review of the pre-sentence reports, and consideration of all factors, agree. [*3]

The Court in Farrar did hold that "[w]here the record shows that the prosecutor's onsent to a plea is premised on a negotiated sentence and a lesser sentence is later deemed to be more appropriate, the People should be given the opportunity to withdraw their consent." 52 NY2d at 307-308 (footnote omitted). As observed by the Court there, "[t]his would merely be the counterpart of defendant's right to withdraw the plea in the event the court, in the exercise of discretion, determines that the sentence agreed upon is inappropriate and indicates an intention to increase the severity of the punishment." 52 NY2d at 308 fn.

"Of course," the Court in Farrar concluded, "this is not to say that the People's application must be granted in all cases, for, among other things, prejudice to a defendant following a plea may prevent restoration of the status quo ante and render vacatur of the plea inappropriate [citation omitted]. Absent defendant's showing of such prejudice or other circumstances militating against vacatur, however, relief to the People would be proper." 52 NY2d at 308.

If this Court were to conclude that it could not agree with the bargained-for sentence, therefore, it must then consider whether to afford the People the opportunity to apply to withdraw their consent to the plea.

This rule applies only where the defendant has pled to something other than the top

count. If the defendant pleads to the top count, the People may recommend, but not insist, on a particular sentence.

In the instant case, the defendant did plead to one of the A misdemeanor charges, i.e., one of the top counts of the District Court information. The People assert, however, that the People incurred a detriment similar to permitting a defendant to plead to a lesser offense. "The People relied upon [the] plea to their detriment by withdrawing the case from the consideration of the Grand Jury."

The defendant argues that the Grand Jury here never voted an indictment to any higher charge. As held in People v. Russo, 57 AD2d 578 (2nd Dep't 1977), a sufficient indictment is non-waiveable jurisdictional requirement to a prosecution, and without any showing that one could have or would have been returned, the defendant argues, it would

be error to premise the defendant's plea as one resulting from any "detriment" to the People.

In People v. Dickerson, 85 NY2d 870 (1995), the defendant after the case against him had been presented to a Grand Jury, but before an indictment was voted (just

as in the instant case) agreed to and did plead guilty to the top count of a superior court information. The plea bargain provided that the defendant, if found to be a "persistent felony offender," would receive a sentence within an agreed-upon range. The defendant was so adjudicated and sentenced. The defendant's adjudication as a persistent felony offender was predicated on the offense he pled to being classified a "lesser included offense." On the defendant's appeal, the Court of Appeals determined that since the defendant had pled to the top count of the superior court information, and no higher charge had ever been voted by the Grand [*4]Jury, the plea could not be considered one to a "lesser included offense," and the defendant therefore could not be adjudicated a "persistent felony offender," or receive the bargained-for sentence. Accord, People v. Williams, 290 AD2d 570 (2nd Dep't), lv. to app. den'd, 98 NY2d 682 (2002); People v. Banuchi, 304 AD2d 402 (1st Dep't 2003).

Under Dickerson's logic, the instant defendant did plead to the top count, and not any reduced charge.

However, the Court in Dickerson did nevertheless conclude that on those circumstances, "the People should be permitted, if so advised, to withdraw their consent

to the plea agreement [citations omitted]." 85 NY2d at 872.

If this Court should determine that the circumstances presented are ones which would militate the People being afforded the right apply to withdraw their consent to the plea, the Court must nevertheless determine whether any such application should be granted.

In People v. Singletary, 112 Misc 2d 1088, 1092-1093 (City Ct., Syracuse 1982) (Mariani, J.), the Court, having sentenced a defendant to a period of one year incarceration rather than the bargained-for two, denied the People's motion for re-sentencing in accordance with the agreement, or, alternatively, permission to withdraw their consent to the plea. Referring to Farrar, the Court held:

The Court of Appeals provided one specific occurrence precluding the Prosecution from withdrawing consent to a plea, that of prejudice to the Defendant pursuant to the

McConnell rationale. Prejudice may also be shown in other ways or "other circumstances" may similarly militate against vacatur. We find that the totality of circumstances in this case favor our exercise of discretion to deny the People's application. . . . [G]iven the relatively slight disparity between sentences, the purposes of incarceration and the particular circumstances of this Defendant, the interests of justice encourage this response.

The court added in Singletary that "the District Attorney has made no claims of prejudice other than its disappointed expectation about the pleas and sentence an incarceration difference of one year." 112 Misc 2d at 1093.

In considering whether a probationary sentence is appropriate in the case at bar, this Court is cognizant of the fact that, as held in People v. Henriques, 7 Misc 3d 453, 457 (Sup. Ct., Kings Co. 2005) (Demarest, J.):

It is well-recognized in this State that the "primary" objective of a probation sentence, though clearly a form of mild punishment, is the rehabilitation of the defendant, in contrast to the function of a sentence of incarceration, which is to punish and is intended to remove a defendant from society. This qualitative difference is of . . . substantive magnitude. . . . [footnote omitted]. See also, People v. Schaffner, 5 Misc 3d 5, 6 (App. Term, 2nd Dep't 2004) (striking down conditions of probation as beyond the discretion of the court to impose where they were [*5]"overbroad, not related to any legitimate purpose, and do not amount to a reasonable condition necessary or appropriate to ameliorate the conduct which gave rise to the defendant's offense, or to prevent the incarceration of the defendant [citations omitted]." Accord, Penal Law §65.00(1)(a), and 34 NY Jur 2d, Criminal Law §2734 (probation appropriate when the defendant is in need of guidance, training, or other assistance which can be effectively administered through probation supervision, and such disposition is not inconsistent with the ends of justice.).

The pre-sentence report prepared by the Nassau County Probation Department in the instant case recommends the imposition of a conditional discharge. The defendant is found by the pre-sentence report to be a mandatory youthful offender. The defendant pled

to a charge involving not intentional wrongdoing, but , rather the unjustifiable failure to have perceived a risk, essentially a one-time failure of judgment. The pre-sentence report indicates minimal culpability, great remorse, and detects no treatment needs. The recommendation of a conditional discharge is rational.

This Court, if entitled to exercise discretion in this regard, would be inclined to adhere to the recommendation of the Probation Department's trained professionals. However, the fact that probation is recognized as a form of punishment, albeit a "mild" one (Henriques, supra), mandates that consideration be given this factor, as well, taking into account the fact that an injury was suffered by the complaining witness.

Given "the totality of circumstances," "the relatively slight disparity between

sentences," "the purposes of [probation], and the particular circumstances of this defendant," "the interests of justice" would appear to encourage the imposition of the sentence recommended by the Probation Department, without the necessity of affording the People an opportunity to withdraw. Singletary, supra. Nevertheless, as suggested by Farrar and Dickerson, the People will be afforded an opportunity to argue and support their position on the next court date.

So Ordered.

DISTRICT COURT JUDGE

Dated: August 3, 2006

CC: Kathleen Rice, District Attorney

Thomas F. Liotti, Esq.

KLG:mc