STATEMENT PURSUANT TO
- On June 17, 2011, Defendant-Appellant was convicted by plea of guilty to the crime of Criminal Possession of a Forged Instrument in the Third Degree, a Class A Misdemeanor
- The sentence imposed was time served plus “Shock Probation” with restitution.
- There is no order issued pursuant to CPL §460.50 outstanding.
STATEMENT OF QUESTIONS INVOLVIED:
- Whether the Accusatory Instrument that Defendant-Appellant pled guilty to, setting forth the Offense of Criminal Possession of a Forged Instrument in the Third Degree, was jurisdictionally defective?
Answer of the Court Below: None.
- Whether the Accusatory Instrument that Defendant-Appellant pled guilty to, setting forth the Offense of Criminal Possession of a Forged Instrument in the Third Degree, an A Misdemeanor, was properly reduced from a felony?
Answer of the Court Below: None.
- Whether the lower court satisfied its duty to conduct further inquiry into whether the Defendant-Appellant’s guilty plea was voluntarily and knowingly made?
Answer of the Court Below: None.
- Whether the Defendant-Appellant may properly raise the issue of the sufficiency of his Plea Allocution for the first time on direct appeal?
Answer of the Court Below: None.
STATEMENT OF ESSENTIAL FACTS
On May 26, 2011, a felony complaint was filed with the New Rochelle City Court charging the Defendant-Appellant with Criminal Possession of a Forged Instrument in the Second Degree, a D felony, in violation of Penal Law §170.25 [see Respondent’s letter-brief, dated September 24, 2012]. During the arraignment, the Court issued a temporary order of protection. See Transcript: 5/26/11; P3. At the Defendant-Appellant’s sentencing, on November 17, 2011, the court issued a permanent order of protection in favor of the “complainant.” See Transcript: 11/17/11; P7.
The Charge Reduction
On June 17, 2011, before the Hon. Gail B. Rice, C.C.J., the felony charge was reduced to a misdemeanor as follows:
People: In anticipation of a plea of guilty, the People move to amend and reduce count one of the accusatory to criminal possession of a forged instrument in the third degree, violation of Penal Law 170.20 to class A misdemeanor.
Court: Does counsel consent to this reduction?
Defense: Yes, I do.
People: Does Your Honor find it to be an appropriate reduction?
Court: I am trying to find the accusatory. I have it. That would be 170.20?
People: Criminal possession of a forged instrument in the third degree.
Court: The Court does find that to be appropriate. Now that it is reduced, I will hear (Defense Counsel’s) application. Whenever you are ready.
Defense: Pursuant to the bench conference, my client has authorized me to enter a plea of guilty to the remaining count of Criminal Possession of a Forged Instrument in the Third Degree in full satisfaction of the dockets. He signed the Misdemeanor Conviction Waiver of Rights. He is prepared for allocution.
See Transcript: 6/17/11, P2-3.
There is nothing contained in the record of the Court’s proceedings to indicate whether, in light of the issuance of a Temporary Order of Protection at the arraignment, the filing of a Supporting Deposition was necessary to convert the Felony Complaint to an Information. There is likewise nothing in the record of the Court’s proceedings to indicate whether the resulting Misdemeanor Complaint was properly converted into an Information.
Prior to the undersigned being assigned to the prosecution of this appeal, this appeal was assigned to Joana A. Otaiza, Esq. Pursuant to the order assigning the undersigned to this appeal, Ms. Otaiza was directed to “provide new counsel with all papers” [see Decision & Order on Motion, dated September 5, 2014, attached as Exhibit A]. On September 17, 2014, the undersigned sent to Ms. Otaiza a Notice of Appearance and Notice of Entry of the Decision & Order on Motion dated September 5, 2014, with a copy of said Order, together with a Subpoena Duces Tecum demanding, inter alia, “all local accusatory instruments” stemming from the criminal proceedings against the Defendant-Appellant [see attached as Exhibit B].
In response, the undersigned received correspondence upon the letterhead of Joana Otaiza, Esq., dated September 29, 2014, stating the following:
In accordance with the attached Decision and Order, I have enclosed all papers I received regarding Mr. Redacted’s appeal. Please be advised that I did not receive a copy of the lower Court record and thus it is not included.
See attached, as Exhibit C.
On September 17, 2014, the undersigned sent to the Court Clerk of the City Court of New Rochelle a Notice of Appearance and Notice of Entry of the Decision & Order on Motion dated September 5, 2014, with a copy of said Order, together with a Subpoena Duces Tecum demanding, inter alia, “all local accusatory instruments” stemming from the criminal proceedings against the Defendant-Appellant [see attached as Exhibit D]. To date, the undersigned has not received any response from the Clerk of the City Court of New Rochelle. Accordingly, the undersigned does not have the accusatory instrument underlying the instant case, and thus, is unable to ascertain whether the felony complaint was converted “into an information by notations upon or attached thereto which make the necessary and appropriate changes in the title of the instrument and in the names of the offense or offenses charged.” See People v. Spooner, 22 Misc.3d 136(A), (App. Term 2nd Dept., 2008), and CPL §180.50(3)(a)(iii).
Although the “Misdemeanor Conviction Waiver of Rights” signed by Defendant-Appellant states, at subdivision “5” thereof, “I waive the filing of any information,” said Waiver does not clearly state that the Defendant-Appellant waived his right to be prosecuted by information, nor does it state that the Defendant-Appellant consented to be prosecuted upon a misdemeanor complaint (see “Misdemeanor Conviction Waiver of Rights,” attached as Exhibit E; see CPL §170.65). Additionally, there is nothing contained in the record of the Court’s proceedings on this matter indicating that the Defendant-Appellant waived his right to be prosecuted by information, or consented to be prosecuted upon a misdemeanor complaint.
The Plea Allocution
The Issue of Duress
On May 26, 2011, at his arraignment on the felony charge, the Defendant-Appellant was remanded after the following colloquy:
Court: As I indicated, this Court cannot set bail. The Defendant will be remanded at this time.
Defense: I am going to request June 2nd for all purposes. I am also going to request that medical attention be noted on his file. He suffers from seizures and depression. He is a disabled vet. He told me he was scheduled for hip surgery for June 27th.
Court: Seizures, depression.
Defense: He is scheduled for hip surgery on June 27th. I mean hip replacement.
Court: There was a fourth thing.
Defense: He is a disabled vet.
Court: Thank you. That will be noted on the commitment. June 2nd for all purposes. Thank you.
See Transcript: 5/26/11; P2-3.
On June 6, 2011, Defense Counsel made the following representation to the Court:
Your Honor, I’m going to request Friday, June 10th, all purposes and hopefully they (the People) will have an offer. We’re just trying to get something as soon as possible because Mr. Redacted has a scheduled hip replacement surgery with the V.A. Hospital for June 27th, so time is of the essence in this matter for us.
See Transcript: 6/6/11; P2.
On June 10, 2011, Defense Counsel made the following representation to the Court:
Your Honor, an offer was conveyed earlier this morning of an A Misdemeanor with nine months Westchester County Jail. I have furnished proof to the Court and the DA’s office that my client has hip replacement surgery scheduled for June 27th. We are having ongoing discussions with the DA’s office for a different offer. In light of that, Your Honor, I’m just going to request an all purpose adjournment to Friday next week. I believe that’s the 17th, Your Honor.
See Transcript: 6/10/11; P2.
The Issue of the Defendant’s Guilt
On June 17, 2011, the Defendant-Appellant was allocuted by the People as follows:
People: Pursuant to your plea of guilty, sir, do you admit on March 10, 2011, at approximately 1:47 p.m., at Citibank located at 238 North Avenue here in the City of New Rochelle, New York, you did, with knowledge that it was forged, intend to defraud, deceive or injure another, did possess a forged instrument?
Defendant: I didn’t know it was forged, but I did possess it.
Court: (Defense Counsel), do you want to speak with him?
Defense: Sure, Judge.
Court: Mens rea is an element.
Defense: Judge, alright. Judge, he is prepared for the allocution.
Court: Maybe you can repeat the last question, (People).
People: Do you admit on the same date, time and place, you did with knowledge that it was forged with intent to defraud, deceive or injure another, utter or possess a forged instrument at the Citibank branch?
People: You understand everything that has been said?
People: Do you have any questions for me, your attorney or the judge?
People: Your Honor, his plea of guilty is acceptable to the People. We will be ordering a pre-sentence report and picking a sentencing date. One thing that was discussed previously with Judge Carbone is I have no objection to the Defendant’s bring released at this point.
* * * * * * *
Court: Mr. Redacted,
a few things sir. With the consent of the People I am going to release you R.O.R. You must be back in court September 22nd at 9:30 for sentence. If you are here, on time for sentence and cooperate with the Department of Probation as they are going to do a report, you have to stay out of trouble, the Court will have no problem keeping the sentence promise made to you. If you are rearrested, if you do not cooperate with the Department of Probation, if you fail to come back for sentence, the Court will not be bound by the sentence indication. You can be sentenced to up to one year imprisonment even if you are not here.
Court: Any questions about what I have said?
See Transcript: 6/17/11; P5-8.
The Court’s Duty to Make Further Inquiry
There is nothing in the record of the Court’s proceedings to indicate that, in light of a statement made by the Defendant that clearly “raised…the possibility that he lacked the requisite criminal intent,” and therefore casted “significant doubt upon the Defendant’s guilt,” the Court met its duty to inquire further to ensure that Defendant “understands the nature of the charge and that the plea is intelligently entered.” See People v. Lopez, 71 N.Y.2d 662 (1988).
Likewise, in light of the events leading up to the Defendant-Appellant’s guilty plea, there is nothing in the record of the Court’s proceedings to indicate that, given the possibility that Defendant-Appellant’s pending scheduled hip replacement surgery might be placing him under duress, the Court met its duty to inquire further to ensure that Defendant was entering his plea knowingly and voluntarily. See People v. McNair, 13 N.Y.3d 821 (2009).
Whether the Instrument
Upon Which Defendant-
Appellant Pled Guilty
Was Jurisdictionally Defective
Criminal possession of a forged instrument in the third degree, pursuant to Penal Law § 170.20, requires the following:
A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument.
The sufficiency of an Information is governed by CPL §§100.15 and 100.40. CPL §100.15(1) states: “An information…must contain an accusatory part and a factual part.”
CPL §100.15(3) states: “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…The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. Nothing contained in this section, however, limits or affects the requirement, prescribed in subdivision one of section 100.40, that in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant’s commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions.
CPL 100.40(1) states: “An information, or a count thereof, is sufficient on its fact when:
(a) It substantially conforms to the requirements prescribed in section 100.15; and
(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and
(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant’s commission thereof.
The fact that the City Court issued a both a temporary order of protection, and ultimately, an permanent order of protection in favor of the complainant in this matter [see Transcripts: 5/26/11; P3 & 11/17/11; P7], suggests that a Supporting Deposition was required upon the reduction of charge from a felony to a misdemeanor in order to satisfy the requirements of of CPL 100.15 and 100.40. There is no indication in the record of the reduction that any such supporting deposition was filed by the People. The failure of the City Court to provide the undersigned with the accusatory instrument that Defendant-Appellant entered his plea upon, despite the service of a subpoena duces tecum demanding such documentation, renders it impossible to ascertain whether the accusatory instrument nonetheless complied with the requirements of the Criminal Procedure Law.
In the case of People v. Alejandro, 70 NY2d 133 (1987), the Court ruled:
The information was insufficient on its face because it lacked the necessary nonhearsay allegations which would establish, “if true, every element of the offense charged and the defendant’s commission thereof” (CPL 100.40 100.15). We hold that this omission constituted a jurisdictional defect which was not waived by defendant’s failure to raise the issue until after completion of the trial.
In the case of People v. Jones, 9 NY3d 259 (2007), the Court of Appeals held:
Failure to assert sufficient non-hearsay factual allegations is a jurisdictional defect.
Id., at 262.
In the case of People v. Banville, 134 AD2d 116, 119 (2nd Dept. 1988), the Court considered the question of the affect of a guilty plea on a subsequent claim of jurisdictional defect:
While there can be no doubt that a guilty plea represents an effective judicial admission by a defendant that he committed the acts charged in the accusatory instrument (citation omitted), and although a defendant, in consideration for the bargain, waives certain rights attendant to trial (citation omitted), the doctrine of forfeiture of appellate review as a consequence of a guilty plea does not extend to defects or improprieties of a jurisdictional nature (citation omitted).
We are called upon, in the context of this appeal, to address an issue which is wholly unrelated to the question of the defendant’s factual guilt. Rather, the error cited in the present case is of a jurisdictional dimension since it concerns “the essential validity of the proceedings conducted below” (citation omitted). It has long been the law of this State that a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution (citation omitted). The reference in this statement of law to the “validity” of the instrument under which charges are laid, pertains not only to substantive or facial sufficiency, but also embraces the concept that certain defects of a procedural character may not be waived, disregarded or forfeited as a result of a guilty plea. Thus, in People ex rel. Battista v. Christian (249 NY 314) and later, in People v. Scott (3 NY2d 148), the right to be prosecuted by an appropriate accusatory instrument was recognized to be a nonwaivable fundamental right.
* * * * * * *
Moreover, in its quest to ensure that criminal prosecutions formally comply with the mode of procedure mandated by the Constitution and statute, the Court of Appeals, in People v. Patterson (39 NY2d 288, 295), declared unequivocally that 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. Stating this rule with greater force, the court elaborated: “where there [is] a fundamental, nonwaivable defect in the mode of procedure, then an appellate court must reverse, even though the question was not formally raised below.
If, due to the lack of a supporting deposition, or for any other reason, the accusatory instrument that the Defendant-Appellant pled guilty to on June 17, 2011, lacked the necessary nonhearsay allegations which would establish, “if true, every element of the offense charged and the defendant’s commission thereof” (CPL 100.40 100.15), it was jurisdictionally defective. As such, the defects therein are not waived by Defendant-Appellant’s guilty plea. Finally, because such defects in said accusatory instrument would “affect the organization of the court or the mode of proceedings proscribed by law” [see People v. Banville, 134 AD2d 116, 119 (2nd Dept. 1988)], such defects, if they exist, must result in the accusatory instrument being dismissed.
The accusatory instrument that the Defendant-Appellant pled guilty to on June 17, 2011, must be carefully examined to ascertain whether the requirements of CPL §§100.15 and 100.40 were met. If they were not, guilty plea entered by the Defendant-Appellant on June 17, 2011, must be vacated, and the Accusatory Instrument must be dismissed as jurisdictionally defective.
Whether the Instrument
Upon Which Defendant-
Appellant Pled was
Pursuant to CPL §180.50(3), a felony complaint may be reduced to a non-felony offense as follows:
(a) If the factual allegations of the felony complaint and/or any supporting depositions are legally sufficient to support the charge that the defendant committed the non-felony offense in question, the court may:
(i) Direct the district attorney to file with the court a prosecutor’s information charging the defendant with such non-felony offense;
(ii) Request the complainant of the felony complaint to file with the court an information charging the defendant with such non-felony offense.
(iii) Convert the felony complaint, or a copy thereof, into an information by notations upon or attached thereto which make the necessary and appropriate changes in the title of the instrument and in the names of the offense or offenses charged.
(b) If the non-felony offense in question is a misdemeanor, and if the factual allegations of the felony complaint together with those of any supporting depositions, though providing reasonable cause to believe that the defendant committed such misdemeanor are not legally sufficient to support such misdemeanor charge, the court may cause such felony complaint to be replaced by or converted to a misdemeanor complaint charging the misdemeanor in question, in the manner prescribed in subparagraphs two and three of paragraph (a) of this subdivision.
There is nothing in the record of the Court proceedings to indicate that the Court directed the District Attorney to file a Prosecutor’s Information, or requested that the complainant to file an information, as required pursuant to CPL §§180.50(3)(a)(i) or (ii).
Due to the failure of the City Court to provide the undersigned with the accusatory instrument that Defendant-Appellant entered his plea upon, despite the service of a subpoena duces tecum demanding such documentation, it impossible to ascertain whether the accusatory instrument was properly converted from a felony complaint into an information by notations upon or attached thereto, which make the necessary and appropriate changes in the title of the instrument and in the names of the offense or offenses charged.
Additionally, assuming that the accusatory instrument was properly converted, CPL §180.50(3)(d) requires the Court to do the following:
Upon the filing of an information, a prosecutor’s information or a misdemeanor complaint pursuant to this section, the court must dismiss the felony complaint from which such accusatory instrument is derived. It must then arraign the defendant upon the new accusatory instrument and inform him of his rights in connection therewith in the manner provided in section 170.10.
There is nothing in the record of the Court’s proceedings to indicate that the Court properly dismissed the felony complaint, or arraigned the Defendant-Appellant upon the new accusatory instrument, or informed him of his rights in the manner provided in CPL §170.10. There is further nothing in the record of the Court’s proceedings to indicate that the Defendant-Appellant in any way waived his rights to be arraigned pursuant to CPL §170.10. See Transcript: 6/17/11; P1-9.
In the case of People v. Spooner, 22 Misc.3d 136(A), (2nd Dept. 2008), the Court held:
A plea of guilty does not constitute a waiver of the requirement that a felony complaint be converted in accordance with the provisions of CPL 180.50(3)(a)(iii).
In Spooner, id., having found that, upon review of the felony complaint, it “was not converted into an information by notations upon or attached thereto which make the necessary and appropriate changes in the title of the instrument and in the names of the offense or offenses charged,” as required by CPL 180.50(3)(a)(iii), the Court reversed the judgment of conviction, reinstated the felony complaint, and remanded the matter to the lower court for further proceedings on the felony complaint.
Assuming that the accusatory instrument that the Defendant-Appellant pled guilty to is not jurisdictionally defective, the Court must carefully examine said instrument to ascertain whether it was properly reduced. If upon examination, the reduction of the accusatory instrument does not meet the requirements of CPL §180.50(3), the judgment of conviction must be reversed, the felony complaint must be reinstated, and the matter must be remanded to the City Court of New Rochelle for further proceedings.
Whether the Court
Duty to Conduct
Guilty Plea was
The Defendant-Appellant stated, during his plea allocution on June 17, 2011, that, “I didn’t know it was forged, but I did possess it” (see Transcript: 6/17/11; P6; Line 5-6). This statement clearly had the effect of casting significant doubt upon his guilt. Additionally, in light of the fact that the Defendant-Appellant had been remanded into the custody of the county, the repeated representations of his attorney, on May 26, 2011, June 6, 2011, and June 10, 2011, insisting that the Defendant-Appellant had hip surgery scheduled to occur on June 27th, coupled with counsel’s statement on June 6, 2011, that “time is of the essence in this matter for us,” all raises a serious question of whether the Defendant-Appellant was under duress to enter a guilty plea in order to be released from custody so that he could attend to his hip surgery.
Pursuant to the Court of Appeals cases of People v. Lopez, 71 N.Y,.2d 662 (1988), and People v. McNair, 13 N.Y.3d 821 (2009), in light of the serious questions concerning the Defendant-Appellant’s guilt, and the voluntariness of his plea, the Court that took his plea had a duty to “inquire further to ensure that (Defendant-Appellant’s) guilty plea (was) knowing and voluntary” (People v. McNair, id., at 822).
“While there is no mandatory catechism (citations omitted) to fulfill the trial court’s duty of ‘further inquiry’ where the defendant’s factual recitation negates or is inconsistent with an essential element of the crime – such as defendant’s criminal intent (citation omitted), at a minimum the record of the subsequent plea proceedings must reflect that defendant’s expressed misapprehension of the nature of the charges was corrected or explained, or that defendant’s responses to the court’s subsequent questions removed the doubt about defendant’s guilt (citations omitted)” [People v. Ocasio, 265 A.D.2d 675, 677-678 (3rd Dept. 1999)]. The record of the Court’s proceedings indicates that no such inquiry was made.
Because his guilty plea fails to meet the requirements of law, as set out by the Court of Appeals in People v. Lopez, and People v. McNair, Defendant-Appellant’s judgment of conviction must be vacated, and the matter remitted to the City Court of New Rochelle for further proceedings.
Whether the Defendant-
Appellant May Properly
Raise the Issue of
The Sufficiency of his
Plea Allocution for the
First Time on Direct Appeal
According to the record that is available to the undersigned, the Defendant-Appellant has raised the issue of the sufficiency of his plea allocution for the first time on direct appeal, without having first moved to withdraw his plea, or vacate his judgment of conviction. However, as set forth in People v. Lopez, 71 N.Y.2d 662, at 666 (1988):
In that rare case…where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea, we have held that the trial court has a duty to inquire further to ensure that defendant’s guilty plea is knowing and voluntary (citations omitted).
Thus, where a defendant’s factual recitation negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that defendant understands the nature of the charge and that the plea is intelligently entered (citations omitted).
Where the court fails in this duty and accepts the plea without further inqury, the defendant may challenge the sufficiency of the allocution on direct appeal, notwithstanding that a formal post-allocution motion was not made (citations omitted).
The case at bar, as set forth in the Statement of Facts, above, is the “rare exception” envisioned by the Court of Appeals in People v. Lopez, id.
Because the circumstances leading up to his guilty plea (the scheduled hip surgery), and his statement that he did not know that the instrument was forged, cast significant doubt upon both the Defendant-Appellant’s guilt, and the voluntariness of his plea, the Defendant-Appellant has properly raised his challenge to the sufficiency of his plea on direct appeal.
For all of the reasons set forth above, the Defendant-Appellant’s Judgment of Conviction must be vacated, and either the accusatory instrument dismissed as jurisdictionally defective, or in the alternative, the matter remanded to the City Court of New Rochelle for further proceedings. for each must be dismissed.
AND SERVICE UPON
On March _______, 2015, I sent a copy of this brief to the Appellant-Defendant with a cover letter advising him of his right to apply to the Appellate Term, within 30 days from the date of mailing, for permission to file a pro se supplemental brief. I provided Defendant-Appellant with the mailing address of the Appellate Term as follows:
Appellate Term of the Supreme Court
State of New York
141 Livingston Street
Brooklyn, NY 11201
Lastly, I urged Defendant-Appellant to contact me if he had any questions, or issues he wished to discuss. A copy of the letter together with an Affirmation of Service is attached as Exhibit F.
THE DISTRICT ATTORNEY
An Affirmation of Service attesting to the service of a copy of this brief together with the copy of the transcript that I received from the clerk of the trial court, upon the offices of the District Attorney, Westchester County, is attached as Exhibit G.
CERTIFICATION OF COMPLIANCE
Pursuant to Rule 670.10.3(f)
MICHAEL F. DAILEY, an attorney duly licensed to practice under the laws of the State of New York, does hereby certify, pursuant to the rules of this Court, that the heretofore produced Brief was prepared on a computer, the typeface is Century, the point size is 14, the line spacing is double except for quotations and headings, and the word count as per my processing system used to prepare the brief is 4,661.
Dated: March 16, 2015
Michael F. Dailey
Attorney for Defendant-Appellant
One Riverdale Avenue
Suite One, Mailbox Eleven
Bronx, New York 10463
 Citations to the Court Transcript will be made by indicating the date of the proceedings, followed by “P” for page, and then the page number.
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