People v Padilla

[*1] People v Padilla 2014 NY Slip Op 50113(U) Decided on January 24, 2014 County Court, Rockland County Alfieri Jr., 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 24, 2014
County Court, Rockland County

The People of the State of New York, Plaintiff,

against

Fidel Padilla and F.G.C. Communications, Inc., Defendants.



2012-204S



THOMAS P. ZUGIBE

DISTRICT ATTORNEY

ROCKLAND COUNTY

1 SOUTH MAIN STREET

SUITE 500

NEW CITY, NY 10956

WILLIAM A. GERARD, ESQ.

71 WOODS ROAD

P.O. BOX 717

PALISADES, NY 10964

Victor J. Alfieri Jr., J.

The within criminal proceeding arises out of an incident that took place on January 16, 2012 in the Village of West Haverstraw. Defendant Fidel Padilla (hereinafter "Padilla"), owner of Defendant F.G.C. Communications, Inc. (hereinafter "FGC"), was performing excavation work as a subcontractor for Verizon Fios on Zarriello Lane when he ruptured a gas line causing an explosion, which, in turn, caused the destruction of a residence and injured two gas servicemen and two firefighters. On May 18, 2012, in Rockland County Court (Apotheker, J.), Padilla entered a plea of guilty by way of Superior Court Information to Reckless Endangerment in the First Degree in violation of Penal Law Section 120.25.[FN1] Padilla also entered a plea of guilty on behalf of FGC by way of Superior Court Information to Assault in the First Degree in violation of Penal Law Section 120.10(3).[FN2] Within one month of entering their guilty pleas, defendants thereafter filed a motion to [*2]withdraw their pleas claiming that their pleas were not voluntarily, knowingly and intelligently entered. Specifically, defendants argue, inter alia, that they entered their pleas under duress and coercion and that the pleas were not knowingly entered due to a report that Padilla became aware of after his plea that bears directly on his alleged criminal conduct. According to Padilla, this report further supports his claimed and continuous claims of innocence. Padilla also asserts that his plea allocution to Reckless Endangerment in the First Degree was factually insufficient.

By Decision and Order dated November 15, 2012, Judge Apotheker held defendants' motion in abeyance pending a hearing. Due to Judge Apotheker's subsequent recusal, the matter was re-assigned to this Court. Defendants thereafter moved to expand the hearing granted by Judge Apotheker to include additional issues not raised in the Defendants' initial motion to withdraw. This Court granted Defendants' motion to expand the hearing by a Decision and Order signed in April 2013.[FN3] This Court presided over the hearing which occurred on several days and spanned a few months during which time testimony was taken and exhibits were marked into evidence. The parties requested an opportunity to submit post-hearing memoranda of law upon their receipt of the hearing transcript.[FN4]

Having presided over the hearing and having considered all of the papers submitted and the arguments of counsel, the Court finds and decides as follows:

As set forth above, the pleas that are the subject of the within motion arose out of an explosion that occurred on January 16, 2012 during excavation work being performed by Padilla. Just a few days after the incident, Padilla met with the police. The police advised Padilla to get an attorney. The District Attorney's Office thereafter began its investigation of the explosion and, within a week of the incident, Padilla and his attorney met with the assistant district attorney assigned to investigate. No charges had yet been filed against either defendant and thus no criminal action had yet been commenced against them. During this meeting, the crimes that Padilla (or his wife or his son) were likely to be charged with were discussed. Also discussed were possible pleas, deportation and sentencing. Similar discussions were had at a second meeting in February 2012.

On May 18, 2012, Padilla appeared in County Court presumably for the previously arranged purpose of entering a plea to two superior court informations: one charging Reckless Endangerment in the First Degree against Padilla and one charging Assault in the [*3]First Degree against FGC. When the matter was called and after preliminary discussions concerning the media, the Court stated that "the first thing [it] need[ed] to do is to act as a local criminal court judge pursuant to 10.20 of the Criminal Procedure Law in order to arraign the defendant on the felony complaint." See, Defendants' Exhibit 20 at p. 8. At that time, the assistant district attorney (hereinafter "the ADA") handed the Court two felony complaints: one charging Padilla with Reckless Endangerment in the First Degree and one charging FGC with Assault in the First Degree. See, Defendants' Exhibits 26 and 23, respectively.[FN5] The Court then arraigned Padilla and asked Defendants' attorney if he "waive[d] a reading and your client — and a reading of your client's arraignment rights thereunder." See, Defendants' Exhibit 20 at p. 8. Defense counsel responded that he was waiving a reading "without waiving the substantive rights including being prosecuted by a sufficient Information." The Court then arraigned FGC. Defense counsel again waived a reading of the felony complaint and a reading of the corporation's rights thereunder. See, Defendant's Exhibit 20 at p.9.

Immediately following the arraignment on the felony complaints, the ADA "handed up" the proposed superior court informations. The minutes of the proceedings reflect that "all" of the documents were signed, including waivers of indictment and superior court informations. The waivers specifically recite that Padilla and FGC were "charged in the justice court in the Village of West Haverstraw" with Reckless Endangerment in the First Degree and Assault in the First Degree, respectively. The Court thereafter placed Padilla under oath and asked several questions regarding his [*4]understanding of the rights he was waiving. During this colloquy, at which time Padilla was communicating through the use of an interpreter, Padilla indicated to the Court that he does not read or write the English language. See, Defendants' Exhibit 20 at p. 18. The ADA then asked Padilla a few questions pertaining to the crimes to which he, as an individual and on behalf of FGC, was pleading guilty. The Court followed up with a few additional questions which the Court indicated may have an "influence on the kind of sentence that I may pronounce." The Court accepted the waivers and pleas to the superior court informations and Padilla executed "Parker" warnings. Padilla was thereafter advised that he had to be "processed" at the Town of Haverstraw Police Department and must also report to the probation department. The matter was adjourned to June 27, 2012 for sentencing.

With the sentencing date having apparently been adjourned, Padilla, just a month after he pled guilty, filed the within motion to withdraw his plea on the ground that his plea was not knowingly, voluntarily or intelligently made. The People opposed the motion. Padilla, having received leave to do so, supplemented his motion to withdraw his plea claiming, inter alia, that his pleas was coerced and that the superior court informations are procedurally defective. The People maintain that the pleas were properly entered and the motion should be denied.

Legal Discussion and Analysis

A motion to withdraw a plea is governed by Criminal Procedure Law Section 220.60(3), which provides:

At any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty to the entire indictment or to part of the indictment, or a plea of not responsible by reason of mental disease or defect, to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored.

C.P.L. §220.60(3). However, "withdrawal of the plea is not to be had for the asking. The motion to withdraw is addressed to the [sound] discretion of the court and must be supported by a showing that the defendant was deprived of some right." Preiser, Peter, McKinney's Practice Commentaries, C.P.L. §220.60, p. 110. See also, People v. Alexander, 97 NY2d 482, 485 (2002); People v. Jackson, 56 AD3d 492 (2d Dept. 2008); People v. Smith, 54 AD3d 879 (2d Dept. 2008). [*5]

Applied here, the Court finds that the motion to withdraw the pleas should be granted under the peculiar circumstances of this case. The evidence adduced at the hearing, which lends some support to Padilla's claims of innocence and coercion, coupled with Padilla's continued assertion of innocence as well as his prompt request to withdraw his plea, all convince this Court "that the interests of justice will be best served by permitting the defendant[s] to withdraw [their] pleas...." People v. DeJesus, 199 AD2d 529, 531 (2d Dept. 1993). Moreover, the Court also finds that the People's failure to follow the mandates of the Criminal Procedure Law, particularly the strictures of Criminal Procedure Law §195(2)(b), raises concerns as to whether Padilla could have knowingly, voluntarily and intelligently entered a plea of guilty under these circumstances. Specifically, the People disregarded the criminal procedures in the manner in which Padilla was charged, brought before the Court, and waived Grand Jury presentment.

It is well-settled that failure to follow the "mode of procedure mandated by the Constitution and statute" may require reversal of a conviction and vacature of a guilty plea. See, People v. Patterson, 39 NY2d 288, 295-96. See also, People v. Banville, 134 AD2d 116, 119-20 (2d Dept. 1988)("[A] defendant in a criminal case cannot waive or even consent to error that would affect the organization of the court or the mode of proceedings proscribed by law.") Such claims, as well as "rights of a constitutional dimension that go to the very heart of the [criminal] process," relate to the integrity of the criminal justice system. See, People v. Griffin, 20 NY3d 626 (2013); People v. Hansen, 95 NY2d 227, 230-231 (2000). Due to the significant impact that errors in the mode of proceedings have on a defendant's rights, the Court discusses its concerns regarding the mode of proceedings utilized in the within action.[FN6]

To begin, a criminal action is commenced when an accusatory instrument is filed in a criminal court. See, C.P.L. §1.20(16), C.P.L. §100.05, C.P.L. §100.55.[FN7] "The only way a criminal action [*6]can be commenced in a superior court is by the filing therewith of a grand jury indictment against a defendant who has never been held by a local criminal court for the action of such grand jury with respect to any charge contained in such indictment." See, C.P.L. §100.05. This type of grand jury indictment is commonly referred to as a "sealed indictment."[FN8] "Otherwise, a criminal action can be commenced only in a local criminal court, by the filing therewith of a local criminal court accusatory instrument, namely: 1. An information; or 2. A simplified information; or 3. A prosecutor's information; or 4. A misdemeanor complaint; or 5. A felony complaint." C.P.L. §100.05 (Emphasis added).[FN9]

Criminal Procedure Law Section 100.55 sets forth "a comprehensive scheme for determining where a local criminal court accusatory instrument must be filed to initiate proceedings." See, Preiser, Peter, McKinney's Consolidated Law of New York, Practice Commentaries, C.P.L. §130.10, p. 467 (2004). When, however, a specifically designated local criminal court is not available, that statute provides alternative courts for filing purposes. See, Preiser, Peter, McKinney's Practice Commentaries, C.P.L. §100.55, p. 468, citing, C.P.L. 100.55(8), C.P.L. §120.30(2) and C.P.L. §140.20(1).[FN10]

Once a local criminal court accusatory instrument has been filed in the local criminal court, the criminal action is commenced and the defendant must be brought before that local criminal court [*7]for arraignment.[FN11] In some instances, e.g., when a defendant is arrested pursuant to a warrant of arrest issued by a local criminal court where a criminal action has already been commenced, the local criminal court may not be available to arraign a defendant. In such instances, "the defendant must be brought before an alternative ["emergency"] court to be arraigned upon the accusatory instrument." See, Preiser, Peter, McKinney's Consolidated Laws of New York, Practice Commentaries, C.P.L. §180.20, p. 177 (2004), citing, CPL §§190.90(5), 170.15, 180.20 (Emphasis added).

On the other hand, when a defendant has been arrested by a police officer without a warrant pursuant to Article 140, the filing of an accusatory instrument will occur at the same time the defendant is brought before the court for arraignment. As such, "circumstances such as availability of the [local criminal] court or the place where the arrest is made may necessitate filing and arraignment in a substitute court." See, Preiser, Peter, McKinney's Consolidated Laws of New York, Practice Commentaries, C.P.L. §180.20, p. 177 (2004).

To ensure the availability of a local criminal court for the purpose of arraigning a defendant who has been arrested, C.P.L. §10.20(3) was enacted. Specifically, Section 10.20(3) permits superior court judges to sit as local criminal courts for three stated purposes. As is relevant here, one such purpose is "(a) conducting arraignments, as provided in subdivision two of section 170.15 and subdivision two of section 180.20 of this chapter." Id. Thus, a superior court is authorized by statute to sit as a local criminal court to conduct arraignments only where the provisions of section 170.15 or section 180.20 are applicable.[FN12] Section 180.20(2) of the Criminal Procedure Law, which sets forth the circumstances under which a superior court judge can sit as a local criminal court judge, provides as follows: [*8] Under circumstances prescribed in this section, a criminal action based upon a pending felony complaint may be removed from one local criminal court to another:

***

2. When a defendant arrested by a police officer for a felony has been brought before a superior court judge sitting as a local criminal court for arraignment upon a felony complaint charging such felony, such judge must, as a local criminal court, arraign the defendant upon such felony complaint. Such court must then either: (a) Dispose of the felony complaint pursuant to this article. If however, such disposition results in a reduction of the charge and the filing of an information or prosecutor's information charging a misdemeanor or a petty offense, such judge, after arraigning the defendant upon such accusatory instrument, must remit the action, together with all pertinent papers and documents, to a local criminal court having trial jurisdiction of the offense charged, and the latter court must then conduct the action to judgment or other final disposition; or(b) Remit the action upon the felony complaint, together with all pertinent papers and documents, to a local criminal court having geographical jurisdiction over the area in which the felony charged was allegedly committed. In such case, such latter court must dispose of the felony complaint pursuant to this article.

C.P.L. §180.20(2)(Emphasis added). The language of Section 180.20(2) is clear: when a superior court judge sits as a local criminal court judge for the purpose of arraignment, it is only sitting in such capacity when a defendant is arrested upon a pending felony complaint and when "circumstances such as [*9]availability of the court or the place where the arrest is made ... necessitates the filing and arraignment in a substitute court." See, Preiser, Peter, McKinney's Consolidated Law of New York, Practice Commentaries, C.P.L. §180.20, p. 177 (2004). Logic dictates that the reason for allowing substitute courts, including superior court judges, to sit as local criminal courts for arraignment is due to the requirement that a police officer, upon arresting a person without a warrant, must, "without unnecessary delay bring the arrested person or cause him to be brought before a local criminal court and file therewith an appropriate accusatory instrument charging him with the offense or offenses in question." See, C.P.L. §140.20(1).

Applied here, these statutory procedures were not followed in the instant action. As previously set forth, the incident, i.e., the explosion, from which the criminal charges arose, took place on January 16, 2012. Padilla was never arrested. Despite the fact that Padilla was never arrested, Padilla appeared in the superior court, presumably at the ADA's request, on May 18, 2012, at which time the ADA "filed" two felony complaints with the superior court. When Padilla appeared before the superior court on May 18, 2012, no criminal action was pending against him, i.e., no felony complaint had been filed with the local criminal court having geographical jurisdiction over the offenses. As set forth in C.P.L. §10.20(3), referring, as is relevant here, to C.P.L. §180.20(2), in order for Padilla to be arraigned before the County Court sitting as a local criminal court, Padilla must have been arrested on a pending felony complaint. In other words, the felony complaints must necessarily have been filed with the Village of West Haverstraw Justice Court, a warrant of arrest must have been issued by that court, Padilla must have been arrested pursuant to that warrant, and the Village of West Havestraw justices must have been unavailable. All of these circumstances are prerequisites to permit the superior court to sit as a local criminal court for the purpose of arraignment under C.P.L. §180.20(2).

This Court's decision is not intended to assert that a defendant cannot voluntarily surrender to a Court's jurisdiction. However, a defendant must surrender to the proper court. Here, the proper court in which Padilla should have surrendered in was the Village of West Haverstraw Justice Court, which is the court having geographical jurisdiction over the offenses charged. That is the court where the People were required to file the "felony complaints" and commence the action and there is no reason for the People's failure to do so. See, C.P.L. §1.20(16), (17), C.P.L. §100.05, C.P.L. §100.10(5), C.P.L. §100.55. Padilla was not under arrest and was fully cooperating with the ADA. There are no special or exigent circumstances that exist in this case to warrant a total [*10]disregard for the procedures set forth in the Criminal Procedure Law. As such, the County Court should not have sat as a local criminal court at the People's request for the purpose of filing the felony complaints and arraigning Padilla. The Legislature surely did not intend for the superior court to sit as a local criminal court merely at the behest of the prosecutor.

Moreover, by not filing the purported felony complaints with the local criminal court, which would have commenced the criminal action against Padilla, the People were unilaterally deciding when the "clock would start" with respect to many of Padilla's Constitutional rights. For example, statute of limitations and speedy trial calculations are determined by the date the criminal action is commenced. In addition, a defendant's "indelible right to counsel" attaches upon the filing of the felony complaint. See, People v. Lopez, 16 NY3d 375, 380 (2011). Although, in this instance, Padilla was represented by counsel prior to the filing of the felony complaints, the People should not be able to undermine or manipulate such a "cherished and valuable protection." Id. As such, the People's failure to file the "felony complaints" directly implicated several of Padilla's Constitutional rights.

Assuming, arguendo, that Padilla was properly brought before the County Court for arraignment, Padilla was denied certain procedural safeguards mandated by the Criminal Procedure Law. At the outset, it must be noted that the arraignment is a very significant event in a criminal action. At the arraignment of a defendant whose action has been commenced by the filing of a felony complaint in local criminal court, the local criminal court is required to "immediately inform [the defendant] of the charge or charges against him and that the primary purpose of the proceedings upon such felony complaint is to determine whether the defendant is to be held for the action of a grand jury with respect to the charges contained [in the felony complaint]."[FN13] See, C.P.L. §180.10(1). In other words, since the local criminal court only has preliminary jurisdiction over felony offenses, "the jurisdiction of the local criminal court, where the felony complaint must be filed, is limited to the functions of determining (a) whether there is any reasonable basis for a Grand Jury to indict, and (b) the assurances required for the defendant's future appearances up to the time of defendant's first appearance in the superior court after indictment." See, Preiser, Peter, McKinney's Consolidated Law of [*11]New York, Practice Commentaries, C.P.L. §180.10, p. 161 (2004).

The court must also inform defendant of his "right to a prompt hearing upon the issue of whether there is sufficient evidence to warrant the court in holding him for the action of a grand jury, as well as his right to the aid of counsel. See, C.P.L. §180.10(2), (3). It is incumbent upon the "the court [to] accord the defendant [the] opportunity to exercise such rights and must itself take such affirmative action as is necessary to effectuate them." See, C.P.L. §180.10(4). As such, a superior court, sitting as a local criminal court, must adhere to these requirements when arraigning a defendant on a felony complaint as if the defendant were appearing in the local criminal court. See, C.P.L. Article 180.

The local criminal court must also review the felony complaint to determine whether it is facially sufficient to give the court jurisdiction. In this respect, the local criminal court must ascertain ... whether the felony complaint is sufficient to confer jurisdiction — for example, whether the allegations furnish reasonable cause to believe the defendant committed the offense (see e.g., Practice Commentaries CPL §§100.15, 100.40). ... Where the instrument does not comport with requirements for jurisdiction, the court has no authority to proceed, as the accusatory instrument should be dismissed and defendant discharged.

See, Preiser, Peter, McKinney's Consolidated Law of New York, Practice Commentaries, C.P.L. §180.10, p. 162 (2004).

The local criminal court's duty to ascertain the sufficiency of the felony complaint is of paramount importance since, as stated above, an insufficient felony complaint is jurisdictionally defective. In other words, "[a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution." People v. Hightower, 18 NY3d 249, 253 (2011), citing, People v. Case, 42 NY2d 98, 99 (1977). "Facial sufficiency of the accusatory instrument is the basis for the court's authority to proceed with the criminal action." See, Preiser, Peter, McKinney's Consolidated Law of New York, Practice Commentaries, C.P.L. §100.40, p. 387 (2004). In other words, " if the instrument is not legally sufficient, the court has no authority at all to proceed with the arraignment.'" Fitzpatrick v. Rosenthal, 29 AD3d 24, 30 (4th Dept. 2006)(Internal citation omitted). [*12]

A felony complaint is "sufficient on its face when: (a) It substantially conforms to the requirements prescribed in section 100.15;[FN14] and (b) The allegations of the factual part of such accusatory instrument and/or supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument." See, C.P.L. §100.40(4). In order to satisfy the reasonable cause standard, "the factual portion of the accusatory instrument must describe the conduct that constitutes the crime charged." People v. Hightower, 18 NY3d at 254.

A review of the felony complaints that were filed in County Court on May 18, 2012 establishes that they are facially insufficient.[FN15] See, Defendant's Exhibits 23 and 26. Pursuant to C.P.L. §100.15(3), a felony complaint must contain a "factual part ... contain[ing] a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." See, C.P.L. §100.15(3), C.P.L. §100.40(4). The purpose of a local criminal court accusatory instrument is "to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy." People v. Dreyden, 15 NY3d 100, 103 (2010). The "felony complaints" filed against Padilla and FGC do not contain a factual part and therefore do not supply sufficient notice of the alleged criminal conduct. Rather, the "felony complaints" filed on May 18, 2012 are completely devoid of factual allegations.[FN16]

Once the local criminal court determines that the felony complaint is facially sufficient, which is not the case in the [*13]within matter, the local criminal court would next determine whether the defendant is to be held for the action of a grand jury with respect to the charges contained [in the felony complaint]." C.P.L. §180.10(1). This determination provides the defendant with "a right to a prompt hearing upon the issue of whether there is sufficient evidence to warrant the court in holding him for the action of the grand jury...." See, C.P.L. §180.10(2). In other words, "an order holding defendant for Grand Jury action requires a judicial determination that probable cause exists to believe the defendant committed a felony." People v. D'Amico, 76 NY2d 877, 880 (1990).

Where a superior court sits as a local criminal court for arraignment, the superior court must dispose of the felony complaint pursuant to Article 180, which includes making the determination after a hearing whether the defendant should be held for the action of the grand jury. See, C.P.L. §180.20(2). An order holding defendant for the action of a grand jury is a statutory prerequisite to a defendant waiving indictment and consenting to be prosecuted by superior court information. See, C.P.L. §195.10(1)(a).[FN17]

A defendant may waive his right to such a hearing. See, C.P.L. §180.10(2). Where a defendant waives his right to a hearing upon the felony complaint, the court is nevertheless required to "either: 1. Order that the defendant be held for the action of a grand jury of the appropriate superior court with respect to the charge or charges contained in the felony complaint; ... or 2. Make inquiry, pursuant to section 180.50, for the purpose of determining whether the felony complaint should be dismissed" and the felony charge reduced.[FN18] C.P.L. §180.30 (Emphasis added).

In the instant matter, no order was ever entered holding Padilla for the action of the grand jury as required by Sections 180.30 and 195.10(2)(b). On May 18, 2012, Padilla's first and only court appearance, Padilla was arraigned on the felony complaints that were handed to the Court on that date. Padilla, through counsel, waived a reading of the felony complaint "and a reading of [*14][his] arraignment rights."[FN19] See, Defendant's Exhibit 20, p. 8. Moments later, the ADA handed up the superior court informations to the County Court. Padilla, however, was never advised of his right to a "prompt hearing" despite the fact that this was his first appearance in court. Even if his counsel, by waiving "a reading of [his] client's arraignment rights thereunder," waived Padilla's right to a prompt hearing, it was still incumbent on the County Court, sitting as a local criminal court, to "[o]rder that the defendant be held for the action of the grand jury...." C.P.L. §180.30. Such an order requires the court to determine that probable cause exists to believe that the defendant committed a felony. As there were no factual allegations contained in the felony complaints, no such determination was made nor could be made. Nor was any such order ever made holding Padilla for the action of the grand jury. See, Defendant's Exhibit 20, p. 8-9. See, e.g., People v. Schultz, 258 AD2d 879 (4th Dept.), app. denied, 93 NY2d 929 (1999)(Superior Court Judge, sitting as a local criminal court, arraigned defendant on the felony complaint, elicited a waiver of her right to a preliminary hearing, and then held defendant for the action of a Grand Jury); see also, People v. Menchetti, 76 NY2d 473, 475 (1990)(Defendant, who was arraigned by a Supreme Court Justice, sitting as a local criminal court, waived a felony hearing and was held for Grand Jury action).[FN20]

Despite there being no evidence in the plea minutes that Padilla was ordered held for the action of a grand jury, the People cite numerous cases for the proposition that "the transfer of defendant's case to County Court is evidence that he was held by a local criminal court for grand jury action." However, each of these cases is distinguishable. In each of those cases, the defendants were arraigned in the local criminal court, i.e., a village court, a town court, etc., not the superior court sitting as a local criminal court. Thus, upon waiver of the preliminary hearing in the local criminal court, the local criminal court was required to "promptly transmit to such superior court the order, the felony complaint, the supporting depositions and all other pertinent documents." C.P.L. §180.30(1). Therefore, in those cases, it was the transfer of the papers from the local criminal courts where the defendants were arraigned to superior court that established that [*15]the defendants were held for the action of the grand jury. The same cannot be said of what occurred here. Moreover, this Court rejects the People's claim that there is a presumption of "regularity [to be] accorded to" these proceedings. Due to the plethora of ways in which the statutory criminal procedures were not adhered to, these proceedings were far from regular.[FN21]

The fact that Padilla was never advised of his right to a "prompt hearing," and therefore never waived such right and was never ordered "held for the action of the grand jury" is of great significance. In order for a defendant to validly waive indictment and consent to be prosecuted by superior court information, "a local criminal court [must have] held the defendant for the action of the grand jury." C.P.L. §195.10(1)(a) and C.P.L. §195.10(2)(b).[FN22] This was never done. Here, the County Court sat as a local criminal court presumably to permit the People to commence the criminal action against Padilla by the filing of the felony complaints, as no action had yet been commenced, just so, minutes later, it could sit as a superior court in the SCI part for the purpose of taking Padilla's plea. As discussed infra, commencement of the action in County Court was not proper under the circumstances of this case.

This Court is certainly aware of the intended purpose of superior court informations, i.e., a negotiated waiver of Grand Jury review for further prosecution via a substitute accusatory instrument." See, Preiser, Peter, McKinney's Consolidated Law of New York, Practice Commentaries, C.P.L. §195.10, p. 190 (2004). As stated by the Court of Appeals, the purpose ... is to allow a defendant who wishes to go directly to trial without waiting for a grand jury to hand up an indictment to do so. In so doing, the defendant can obtain a speedier disposition of the charges against him and the State is spared the time and [*16]expenses of unnecessary grand jury proceedings.

People v. Menchetti, 76 NY2d at 476 (Internal citations omitted); see also, People v. Boston, 75 NY2d 585, 588-589 (1990). In other words, the superior court information was meant to "facilitate[] negotiations for a reduced charge or sentence." See, Preiser, Peter, McKinney's Consolidated Law of New York, Practice Commentaries, C.P.L. §195.10, p. 191 (2004). However, the benefit to the People in not having to present the case to the grand jury, a right guaranteed by the state Constitution, was not meant to outweigh the benefit to the defendant in a speedier disposition, nor at his expense. As the Court of Appeals stated, in referring to the waiver of indictment, "the general purposes and objectives behind the constitutional amendment [was] to allow defendants to obtain speedier dispositions of pending criminal charges, while not infringing upon their constitutional protections." People v. Trueluck, 88 NY2d 546, 549 (1996)(Emphasis added).

As previously stated, the waiver of indictment procedure implicates a defendant's constitutional right "to indictment by a Grand Jury before being tried for an infamous crime." People v. Perez, 83 NY2d 269 (2001). As such, any defect in the waiver of indictment procedure is a jurisdictional defect and will result in the reversal of a conviction and vacature of a guilty plea. See, People v. Boston, 75 NY2d at 589.

Here, the Court questions whether the intended purpose of the waiver of indictment procedure was met as it appears that the benefit to the People certainly outweighed any benefit to the defendants. According to the People, this was a plea bargain, i.e., a negotiated disposition. However, what exactly was the bargain? The defendants pled guilty to the highest and only crimes charged in the felony complaints and the only charges ever discussed with counsel during their preliminary discussions, i.e., discussions held prior to the commencement of any action. In addition, although the People indicated that they would not be recommending any jail time at the time of sentencing, Padilla and FGC entered into open-ended pleas. In other words, Padilla and FGC pled guilty to the exact crimes they were charged with without any promise as to their sentence. Defendants did not plea to a lesser offense. Defendants did not enter a plea with a promised sentence. Rather, other than a speedy disposition of a criminal action that had not previously been commenced prior to the day Padilla entered the guilty pleas, the only other benefit that inured to Padilla that the Court can discern was the People's promise that they would not prosecute Padilla's wife and son. As such, this Court finds some [*17]support for Padilla's claim of coercion.[FN23]

Notwithstanding the above, the Court also finds it worth mentioning other deficiencies that occurred with respect to the proceedings that took place on May 18, 2012. First, the plea allocution itself is lacking in certain respects. To begin, Padilla, who was communicating to the Court through an interpreter, indicated to the Court that he did not read or write English. Yet, considering the barrage of documents that were handed to the Court that day, i.e., the felony complaints, the superior court informations, the waivers, and the Parker warnings, nowhere in the plea minutes does it indicate that the interpreter translated those English-written documents into Spanish. Nor was any evidence adduced at the hearing to establish that Padilla read these documents. In fact, during the hearing on this motion, Padilla testified to the contrary: Q.The question was, when you signed [the waiver of indictment] in court, did the court translator translate that document for you?

A.No.

Q.All right, now the other documents that we've talked about that were signed that day, a waiver of indictment for FGC, were any of those documents translated for you by the court interpreter?

A.No.

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Q.Were any of those documents, Exhibits 22 through 29, translated for you by the court interpreter in court?

A.No.

Q.Well, why did you sign all these papers if you didn't understand?

A.They told me to sign.

See, Hearing Tr. at pp. 811-812.[FN24] Thus, Padilla's uncontradicted testimony bears additional support for his claim that his plea was [*18]not knowingly and intelligently entered.

Moreover, the Court questions, without needing to decide, whether the factual allocution was sufficient with respect to the element of depraved indifference. Padilla's responses to the Court's inquiry regarding the actions he took as soon as he smelled the gas cast doubt on whether Padilla had "an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not." People v. Feingold, 7 NY3d 288, 296 (2006). The fact that Padilla immediately called 911 when he first smelled the gas tends to negate the element that he didn't care whether grievous harm results or not.

Based on the foregoing and having considered the totality of the circumstances surrounding Padilla's pleas on May 18, 2012 and the Court having applied its discretion in this instance, it is hereby

ORDERED that Padilla's and FGC's motions to withdraw their guilty pleas are granted.

This Decision shall constitute the Order of this Court.

E N T E R

Dated: January, 2014

New City, New York

HONORABLE VICTOR J. ALFIERI, JR.

J.C.C.

THOMAS P. ZUGIBE, DISTRICT ATTORNEY, ROCKLAND COUNTY

1 SOUTH MAIN STREET, SUITE 500, NEW CITY, NY 10956

WILLIAM A. GERARD, ESQ.

71 WOODS ROAD, P.O. BOX 717, PALISADES, NY 10964 Footnotes

Footnote 1: No criminal action had been commenced against the defendants prior to May 18, 2012.

Footnote 2: The Court released Padilla on his own recognizance at the conclusion of the May 18, 2012 court appearance and Padilla's ROR status remains the same during the pendency of these proceedings.

Footnote 3: The additional issues that the Court expanded the hearing to include pertained to alleged exculpatory documents in the People's possession, as well as alleged coercion inherent during the plea negotiations.

Footnote 4: After having received the minutes of the hearing, which apparently took some time, defendants' requested an adjournment to submit their memorandum of law, which this Court granted. Defendants' memorandum of law was received by the Court in mid-November 2013.

Footnote 5: The felony complaint charging Padilla with Reckless Endangerment in the First Degree exclusive of the caption, the verification and signature, stated, in its entirety, as follows: "I, Raymond J. Gregg, a Detective in the Rockland County District Attorney's Office, accuse the above named defendant [Padilla] of the crime of RECKLESS ENDANGERMENT IN THE FIRST DEGREE (Sec. 120.25 Penal Law), committed as follows: The defendant, in the County of Rockland, in the State of New York, on or about the 16th day of January, 2012, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct which created a grave risk of death to another person."

The felony complaint charging FCG with Assault in the First Degree exclusive of the caption, the verification and signature, stated, in its entirety, as follows: "I, Raymond J. Gregg, a Detective in the Rockland County District Attorney's Office, accuse the above named defendant [FCG] of the crime of ASSAULT IN THE FIRST DEGREE (Sec. 120.10(3) Penal Law), committed as follows: The defendant, in the County of Rockland, in the State of New York, on or about the 16th day of January, 2012, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct which created a grave risk of death to another person and thereby caused serious physical injury to Kenneth Patterson and Jerry Knapp."

Footnote 6: Admittedly, some of the statutory procedures mentioned by the Court were not specifically raised by the parties. However, due to the fact that the provisions of the Criminal Procedure Law apply exclusively to criminal actions and are so interwoven with each other, the Court's discussion would not make sense without reference to the statutes not cited to by the parties.

Footnote 7: The date upon which a criminal action is commenced, i.e., the date the accusatory instrument is filed, is significant in that "calculations for statute of limitations and speedy trial purposes are determined by reference to that date." See, Preiser, Peter, McKinney's Consolidated Laws of New York, Practice Commentaries, C.P.L. §100.05, p. 317 (2004)(Statutory citations omitted).

Footnote 8: See also, C.P.L. §210.10 ("If the defendant has not previously been held by a local criminal court for the action of the grand jury and the filing of the indictment constituted the commencement of the criminal action, the superior court must order the indictment to be filed as a sealed instrument until the defendant is produced or appears for arraignment, and must issue a superior court warrant of arrest."

Footnote 9: The two main purposes of an accusatory instrument are: (1) It informs the defendant of the nature of the charges and acts constituting it so that he may prepare for trial; and (2) it protects the defendant from being tried twice for the same offense by specifically identifying the alleged crime. See, People v. Sedlock, 8 NY3d 535, 538 (2007).

Footnote 10: For example, a local criminal court accusatory instrument "may be filed with a judge of a superior court sitting as a local criminal court when an offense charged therein was allegedly committed in a county in which such judge is then present and in which he either resides or is currently holding, or has been assigned to hold, a term of superior court." See, C.P.L. §100.55(7).

Footnote 11: The "arraignment" is "the occasion upon which a defendant against whom an accusatory instrument has been filed appears before the court in which the criminal action is pending for the purpose of having such court acquire exercise and control over his person with respect to such accusatory instrument and of setting the course of further proceedings in the action." See, C.P.L. §1.20(9). In other words, "it is the occasion upon which the defendant is apprized of the charge, advised of his or her rights and submits to the control of the court." See, Preiser, Peter, McKinney's Consolidated Law of New York, Practice Commentaries, C.P.L. §1.20 and §180.10, p. 27, p. 161 (2004).

Footnote 12: As C.P.L. §170.15(2) pertains to the removal of actions from one local criminal court to another where a defendant has been arrested for an offense other than a felony, it is not relevant to the pending motion.

Footnote 13: "A felony complaint' is a verified written accusation by a person, filed with a local criminal court, charging one or more other persons with the commission of one of more felonies. It serves as a basis for commencement of a criminal action, but not as a basis for prosecution thereof." See, C.P.L. §100.10(5).

Footnote 14: Section 100.15 sets forth the form and content of a felony complaint. A felony complaint must contain a caption, an accusatory part, and a factual part and must be subscribed and verified by the complainant. C.P.L. §100.15(1). That section further provides: "The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." See, C.P.L. §100.15(3).

Footnote 15: Due to the manner in which the within proceeding was commenced, a review of the felony complaints to ascertain their facially sufficiency was never done.

Footnote 16: See, People v. Siminions, ___ AD3d ___, 2013 NY App. Div. LEXIS 8612, 2013 NY Slip Op 8670 (2d Dept. 2013)(Where superior court information charging defendant with Assault in the Second Degree and Assault in the Third Degree referred to a different victim than that charged in the felony complaints and "there [were] insufficient surrounding facts to reveal that the assault charges actually refer to the same incident," defendant's plea was vacated and the SCI was dismissed).

Footnote 17: Moreover, a defendant can only waive indictment in either: "(a) the local criminal court in which the order was issued holding the defendant for the 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." C.P.L. §195.10(2)(Emphasis added).

Footnote 18: Where a defendant waives his right to a hearing, the local criminal court "must [then] promptly transmit to such superior court the order, the felony complaint, the supporting depositions and all other pertinent documents." Id.

Footnote 19: Defense counsel specifically waived Padilla's arraignment rights "without waiving substantive rights including being prosecuted by a sufficient information." See, Defendant's Exhibit 20, p. 8.

Footnote 20: The Schultz and Menchetti cases appear to hold that the Court must order the defendant be held for the action of the grand jury or defendant must explicitly waive his right to a prompt hearing prior to entering a plea to a superior court information.

Footnote 21: According to the People, this finding "would invalidate every single plea by Superior Court Information in the County." However, this Court is deciding and can only decide the within matter based solely on the facts before it pertaining to the circumstances surrounding Padilla's pleas. In fact, this Court believes it would be highly unlikely that in all or a majority of the cases disposed of in the SCI part, no criminal action had been commenced against the defendants by the filing of a felony complaint in local criminal court prior to their appearance in the SCI part.

Footnote 22: "[A]n infringement upon the right to prosecution by indictment is jurisdictional and cannot be waived by guilty plea." People v. Menchetti, 76 NY2d 473, 475 (1990)(Internal citations omitted).

Footnote 23: "[G]uilty pleas made in consideration of lenient treatment as against third persons pose a greater danger of coercion than purely bilateral plea bargaining" United States v. Nuckols, 606 F.2d 566, 569 (5th Cir. 1979).

Footnote 24: Exhibits 22 through 29 are: Waiver of Indictment as against FGC (Ex. 22), Felony Complaint as against FGC (Ex. 23), Superior Court Information as against FGC (Ex. 24), Order as against FGC (Ex. 25), Felony Complaint as against Padilla (Ex. 26), Superior Court Information as against Padilla (Ex. 27), Order (Ex. 28), and Waiver of Indictment as against Padilla (Ex. 29).