Opinion
IND No. 70444-22/001
02-05-2024
The People of the State of New York v. Jarrett C. Coniglio, Defendant.
Kevin Finnell, Esq. Genesee County District Attorney By: Joseph J. Robinson, Esq. First Assistant District Attorney Louis C. Mussari, Esq. Attorney for Defendant
Unpublished Opinion
Kevin Finnell, Esq. Genesee County District Attorney
By: Joseph J. Robinson, Esq. First Assistant District Attorney
Louis C. Mussari, Esq. Attorney for Defendant
MELISSA LIGHTCAP CIANFRINI, J.
Having been permitted to plead guilty to one count of Attempted Murder in the First Degree, a class "B" violent felony, in violation of Penal Law §§ 110.00 125.25(1), in full satisfaction of the above entitled action additionally charging one count each of Assault in the First Degree, Criminal Possession of a Weapon in the Third Degree, Intimidating a Victim or Witness in the Third Degree, Criminal Mischief in the Fourth Degree (Disabling Equipment to Prevent Emergency Call to Police/Fire/EMT), and Menacing in the Second Degree and with a sentence cap of a determinate sentence of fourteen years, and two and one-half to five years of post-release supervision, which was to run concurrently with a sentence for his conviction of Assault in the Second Degree, the defendant, Jarrett C. Conigilio (hereinafter, "the Defendant" or "Mr. Coniglio") now moves to withdraw that plea on the grounds that there was a mistake or fraud in the inducement of the plea as the complaining witness was "not available" and otherwise unwilling to testify at trial and further moves for a dismissal of the indictment on speedy trial grounds under CPL §§ 30.30(1)(a) and 210.20(1)(g). In opposition, the People have submitted the Answering Affirmation of First Assistant District Attorney Joseph J. Robinson affirmed on December 4, 2023. Oral arguments were held on December 20, 2023. This matter is now fully submitted for this Court's decision.
The Defendant asserts that his plea was either fraudulently or mistakenly induced by the prosecutor's "misrepresentation" that the Genesee County District Attorney's Office had recently been in contact with the victim and confirmed the victim's availability to testify. At a status conference with the Court's attorney on May 1, 2023, defense counsel inquired specifically about the People's readiness for trial as it related to the victim's "availability" to testify due to his understanding that the victim no longer wanted to cooperate with the District Attorney's Office. The prosecutor confirmed that the victim was available to testify in this conference and defense counsel was provided an opportunity to speak with his client after this conference. The Defendant elected to enter the plea on May 1, 2023. Of note, the victim was being prosecuted by the Genesee County District Attorney's Office on an unrelated felony sex offense after the present matter was indicted on or about August 11, 2022.
Several months after entry of the plea, defense counsel had a chance encounter and conversation with the victim's criminal defense attorney (hereinafter, "the Victim's Attorney") wherein Mr. Mussari was seemingly advised that the District Attorney's Office had not been in contact with the victim since he testified before the grand jury in Mr. Coniglio's matter. Based upon the above circumstances, defense counsel now asserts that the victim was "unavailable" at the time of plea and Mr. Coniglio should be permitted to withdraw his guilty plea. Defense counsel further argues that if the Court permits Mr. Coniglio to withdraw his plea, then the current matter is time barred and should be dismissed as the People's declaration of readiness was illusory. The prosecution asserts that at the time of the filing of the statement of readiness throughout the pendency of this case, the People were ready and remained ready for trial.
A trial court may only accept a guilty plea when satisfied that it is knowing, voluntary and intelligent (Boykin v. Alabama, 395 U.S. 238, 242 [1969]). It is within a court's sound discretion to determine whether the plea has been intentionally made and whether withdrawal of the plea should be permitted (CPL § 220.60[3], People v. Garner, 86 A.D.3d 955, 955 [2011][internal citations omitted]; People v. Williams, 170 A.D.3d 776, 776 [2019]). A court's refusal to permit a withdrawal of a guilty plea does not constitute an abuse of discretion unless there is some evidence of innocence, fraud or mistake in the inducing of the plea (Garner, 86 A.D.3d at 955).
Defendant's argument that the victim was unavailable because he allegedly no longer desired to testified must fail. Defendant attempts to substitute the victim's desire to testify for the witness's availability to testify. At the arraignment, the prosecutor confirmed that he had been in contact with the witnesses and they were available to testify. Defendant's assertions of the victim's "unavailability" are bald conclusions that are unsupported by the record or the Victim attorney's affidavit. Nowhere in the Victim attorney's affidavit does it provide that the victim was unavailable, unwilling or even out of the State before or at the time of the plea. To the contrary, the prosecutor asserts and the Victim's attorney does not dispute that they had a conversation prior to the plea wherein the prosecutor advised that he would be contacting the Victim's attorney to arrange for service of a subpoena for a potential trial of this matter. Shortly after this conversation, the Defendant entered his plea in this case. The prosecutor was placed in an unenviable position of needing to speak with a victim who was simultaneously being prosecuted by his office. As such, he fulfilled his ethical obligation by speaking with the Victim's attorney regarding the victim's availability. Equally availing is the fact that the victim had a pending court case before this Court and was regularly appearing on that matter as directed by the Court.
Moreover, this Court engaged in a detailed colloquy with the Defendant wherein he stated that he understood the plea and wanted to go forward. When asked by the Court, the Defendant confirmed that he had discussed and had sufficient time to consider the issues related to his case such as the charges, defenses thereto and the plea offer with his attorney. He further maintained that he was satisfied with the services of his attorney and had confidence in counsel. Lastly, he told this Court that he was entering this plea of his own free will and that no one was coercing or forcing him to do so.
The cases relied upon by defense counsel, People v. Bay, 2023 NY Slip. Op. 06407, 2023 WL 8629188 (December 14, 2023) and People v. Gaskin, 214 A.D.3d 1353 (4th Dep't. 2023) are misplaced. In Bay, the Court addressed discovery materials that were available, but not timely produced to the defense. Here, all discovery was timely provided by the prosecution. In Gaskin, the Court held that the trial court's use of a "prejudice-only" standard in evaluating the People's certificate of compliance (hereinafter, "the COC") while evaluating a motion for speedy trial under CPL § 30.30 was in error. Based upon the facts of this case, the Court finds that the prosecutor exercised due diligence and made reasonable inquiries to ascertain the information needed to declare and maintain readiness for trial and thus, filed a proper certificate of compliance and, therefore, the COC was not illusory.
CONCLUSION
The Defendant's motion to withdraw his guilty plea is DENIED, and as a result the motion to dismiss pursuant to CPL §30.30 is moot. The Defendant will be sentenced accordingly by this Court.
This Decision constitutes the Order of this Court.