People v Weiner

[*1] People v Weiner 2009 NY Slip Op 51192(U) [23 Misc 3d 1139(A)] Decided on June 11, 2009 Supreme Court, Kings County D'Emic, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2009
Supreme Court, Kings County

The People of the State of New York

against

Arye Weiner, Defendant.



340-07



Attorney for the People:

ADA Vivian Cedeno

Office of District Attorney, Kings County

350 Jay Street

Brooklyn, NY 11201

(718)-250-2000

Attorney for the Defendant:

Edward Kratt, Esq.

350 Broadway, Room 1202

New York, NY 10013

(212)-941-1277

Matthew J. D'Emic, J.

On February 20, 2007, defendant was arraigned on this indictment and entered a plea of not guilty to assaulting his wife and violating an order of protection issued against him. At the time, Mr. Weiner had checked himself into a treatment facility for addiction to alcohol and prescription drugs. He asked to be evaluated for diversion from the Brooklyn Domestic Violence Court to the Brooklyn Mental Health Court. The People consented to the evaluation, which was done by a psychiatrist and a social worker. Both professionals determined that the defendant was eligible for the mental health court. At that point, the court's clinical team developed a treatment plan for the defendant, and his attorney and the assistant district attorney negotiated a plea agreement with alternative sentences depending upon Mr. Weiner's success or failure in complying with this court's treatment mandate.

On May 22, 2007, the defendant, with his attorney present, pled guilty to Assault in the Second Degree, Criminal Contempt in the First Degree and Criminal Contempt in the Second Degree. It was agreed that upon successful completion of defendant's treatment mandate both felony pleas would be vacated and Mr. Weiner would receive a sentence of probation. However, in the event of failure, the agreement was a sentence of seven years. [*2]

Defendant now moves pursuant to Criminal Procedure Law §220.60 (3) to withdraw his guilty plea, claiming that he was "under the influence of narcotics and a substantial impairment of my mental facilities, which rendered me totally unable of understanding the true nature of the proceedings and the specific terms of the plea bargain...". Defendant bolsters this claim with a positive toxicology for opiates administered on the day of the plea by the court's clinical personnel.

The motion is denied.

The determination of whether to allow the withdrawal of a guilty plea rests with the discretion of the trial court (People v Babcock, 304 AD2d 912) and, in general, courts view guilty pleas as the end of a criminal case and not an invitation to further litigation (People v Taylor, 65 NY2d 1). To warrant withdrawal the court must be convinced that the guilty plea was not entered into voluntarily, knowingly and intelligently (People v Alexander, 97 NY2d 482).

In this case, the defendant asked for an alternative to incarceration program in February of 2007. In the ensuing three months he appeared in court, with counsel, no fewer than seven times. Negotiations, evaluations and substantive discussions took place, in his presence, in open court. Various plea options were discussed, and on May 8, 2007 - two weeks before his plea - the defendant's attorney requested an adjournment because of her dissatisfaction with the People's plea offer. At none of these appearances did this defendant appear to the court to be intoxicated, incoherent or incompetent.

On the date of his plea, the defendant stood before the court, with counsel, as the plea deal was explained first by the assistant district attorney and then by the court. At no time did the defendant ask for an adjournment, request time to speak to his attorney or indicate to the court in any matter that he was "in a tenuous state of mind" as claimed in this motion. The defendant was advised by the court: "This is final. If you fail out of this program, if you get re-arrested...then you are going to be sentenced to seven years in jail...". The defendant clearly indicated that he understood.

Although the defendant initially said "no" when asked if he caused physical injury to his wife with a dangerous instrument, the court was, and is, of the opinion that this answer is the result of a lay misunderstanding that a pillow can legally be a dangerous instrument, and not a denial of guilt. This belief is bourne out by the rest of the allocution.

In addition, although the defendant tested positive for opiates, his appearance in court on the plea date, as well as all prior and subsequent dates, belie any confusion or misunderstanding as to the ramifications of his plea. The use of drugs or alcohol, absent other indicia of misconception is insufficient to allow withdrawal of a guilty plea (see: People v Quinones, 51 AD3d 1226;

People v Wilson, 45 AD3d 407; People v Criscitello, 32 AD3d 1112; People v Stone, 303 AD2d 782; People v Thompson, 169 AD2d 463).

In this regard, it should also be noted that Mr. Weiner tested negative for any drugs or alcohol on May 29, 2007 - a week after his plea, an indication of minimal or distant drug use.

The court also notes that the defendant did not express dissatisfaction with his plea in any subsequent court appearance. Even after his re-arrest and indictment for violating the court's order of protection in October of 2008 he asked for another chance at an alternative to incarceration program instead of the imposition of the promised sentence. It is only two years [*3]after the plea that the defendant seeks its withdrawal on the thin and recent claim of intoxication.

This defendant, meaningfully represented by counsel at every court appearance, had the terms of his plea clearly explained to him (People v Laurent, 58 NY3d 754). He violated those terms by his arrest and indictment (People v Outley, 80 NY2d 702) and his discharge from his program (People v Knowlden, 43 AD3d 960; People v Messenger, 7 AD3d 642). The defendant was coherent at his plea and was in no way so divorced from orientation or cognition as to warrant withdrawal of the plea. To the contrary, Mr. Weiner stood before the court in all respects engaged, alert, attentive and rational with the ability knowingly, intelligently and voluntarily to plead guilty. Therefore, the motion is denied.

This constitutes the Decision and Order of the court.

____________________________

Matthew J. D'Emic

J.S.C.