Opinion
181-07.
Decided June 4, 2008.
Robert Reno, Esq., Port Jervis, NY, Attorney for Defendant.
Hon. Stephen F. Lungen, Sullivan County District Attorney, Sullivan County Courthouse, Monticello, NY, By: James R. Farrell, ADA, of counsel, Attorney for the People.
This matter comes on by motion of the People to enhance the agreed upon sentence of the defendant for his failure to comply with this Court's Parker warnings following his plea. Defendant submits opposition. On September 14, 2007 the defendant pled pursuant to a plea agreement to two counts of Predatory Sexual Assault Against A Child a class A-II felony in violation of PL § 130.96. In return for said plea and a waiver of appeal defendant was to receive an 18 year determinate sentence on each count to be run concurrently, five years post release supervision, an order of protection and sex offense registration.
Following the defendant's plea, including a sworn allocution satisfactory to the Court, the People and the defense counsel, this Court issued the defendant Parker warnings including that he must cooperate with the Sullivan County Probation Department regarding the preparation of the pre-sentence investigation report (PSI), take responsibility for his actions and admit his wrongdoing.
Specifically, on page 12 and 13 of the plea minutes the following colloquy took place between the Court and the defendant:
"THE COURT: That's true.
Mr. Grimm, your attorney has done an awful lot of work to persuade everyone to go along with this plea bargain on your behalf, which, under the law, can be very favorable. You could be looking at 75 years in prison. 50 years in prison, realistically. But, Mr. Gold has worked out a deal for 18, which is satisfactory to everyone, including the victims and the family, and you want this court to go along with that 18-year sentence, as I told you I would, however, you must cooperate with the Probation Department they are going to be in to interview you.
The purpose of a plea bargain is because you express remorse for what you did, accept responsibility for what you did, if you take any position inconsistent with those factors this court will not be bound to the 18 years. This court will be free to give you more that 18 years, okay?
THE DEFENDANT: Yes.
THE COURT: Just continue to be remorseful and accept responsibility for what you did and be open and honest with the Probation Department and you will get the benefit of the plea bargain that's been worked out for you, Okay? (Emphasis added.)
THE DEFENDANT: Yes, your Honor. I'll do anything I can for my life to get better.
THE COURT: There you go. That's a good positive attitude. Keep that up."(Emphasis added.)
At defendant's PSI interview in the Sullivan County jail he denied any wrongdoing; showed no remorse for his actions; failed to take any responsibility for his actions; was uncooperative; blamed the twelve year old victim; and accused the police of fabricating his admissions.
Sullivan County Probation Department prepared a PSI indicating all the above.
Upon receipt of the PSI at sentencing the People moved to enhance the defendant's agreed upon sentence in that he failed to follow this Court's Parker warnings.
The defendant submitted opposition and the defendant's affirmation reiterated that he denied his guilt to probation and stating that he did nothing wrong.
Nonetheless, this Court then conducted an evidentiary hearing People v Hicks , 98 NY2d 185 (2002). Following the Hicks Hearing this Court reserved decision and requested memorandums of law and/or proposed findings of fact.
Both the People and the defense submitted proposed finding of facts together with appropriate law.
A Hicks Hearing is a summary hearing, See, CPL § 400.10(3); People v Outley , 80 NY2d 702 (1993), wherein the People have the burden to show beyond a reasonable doubt, See, People v Gonzalez , infra; People v Rosario , infra), that the defendant violated the court's Parker warnings following defendant's plea. Said violation of the court's Parker warnings is a legal basis for a court to enhance the defendant's agreed upon sentence. See, People v Hicks , supra; People v Gonzalez , 9 Misc 3d 344 (Sup.Ct., NY Cty., 2005); People v Rosario, 3 Misc 3d 952 (Sull. Cty. Ct., 2004).
The Hicks Hearing must be an inquiry sufficient to determine whether a violation of the court's Parker warnings occurred and must satisfy the requirements of Due Process. People v Valencia , 3 NY3d 714 (2004); People v Outley , supra.
The Criminal Procedure Law mandates that a PSI must be ordered prior to sentencing in each felony conviction, the court may not pronounce sentence until it has received said PSI and the court will rely on the PSI at sentencing. CPL § 390.20; People v Hicks , supra.
In a summary hearing, hearsay evidence alone is insufficient
to sustain the People's burden of proof. See, People v Constanza , 281 AD2d 120 (3rd Dept., 2001) (regarding probation violation summary hearing.)
In the instant matter, although the People did not call the author of the PSI as a witness, the PSI was admitted. This Court also considered: 1. that the defendant admitted that he denied his guilt to probation in paragraph 8 of his answer to the People's motion to enhance the sentence, 2. this Court's Decision and Order dated April 19, 2008 denying defendant's prior 440 motion to vacate his plea upon the ground that he is innocent, 3. defendant's plea allocution where this Court gave the defendant explicit Parker warnings and he acknowledged that he understood them and understood the penalty for non-compliance, 4. defendant did not refute his duty to cooperate with probation, agreed to cooperate and breached that duty and 5. the defendant did not present any evidence or witnesses to disclaim the facts in the PSI at the Hicks Hearing though he had the opportunity to do so.
This Court finds that the People have sustained their burden beyond a reasonable doubt and that the defendant has clearly and unequivocally breached the conditions of his plea, has demonstrated a complete lack of remorse and has refused to accept responsibility for his actions, thus, thwarting the very basis and essence of the plea bargain.
Accordingly, this Court will no longer be bound by the sentencing limitation of defendant's plea agreement and will be free to enhance the defendant's sentence on the facts and circumstances of the instant crime as a result of his violation of his plea agreement conditions and this Court's Parker warnings.
This shall constitute the Decision and Order of this Court and sentencing shall proceed forthwith.
After full argument and presentation by the Prosecutor and defense counsel, the defendant exercised his right to speak and read a prepared statement wherein he reiterated his claim that he did nothing and again blamed the twelve year old victim and the police for fabricating his admissions.