Opinion
2007-0544.
Decided April 28, 2008.
Donald F. Cerio, Jr., Esq., District Attorney of Madison County (Jeffrey A. Aumell, Esq., of counsel), for the People; Linda M. Campbell, Esq., for the Defendant-Appellant.
This is an appeal from a judgment of the Justice Court of the Village of Hamilton, Madison County (Fisher, J.), rendered on August 6, 2007, convicting the defendant-appellant on his plea of guilty of the crime of petit larceny and from the sentence imposed thereon.
On March 17, 2007, the defendant entered a supermarket in the village of Hamilton and took various items of merchandise without paying for them. He was charged with petit larceny and appeared for his arraignment later that day. The court's "arraignment memorandum" recites that the court informed him of his rights, provided him with a copy of the accusatory instrument, assigned counsel to represent him, and set bail pending his next appearance which was scheduled for April 2, 2007. The defendant's plea of "N.G." (not guilty) was noted.
The record shows that defense counsel thereafter made a detailed written discovery demand and served a written motion seeking extensive pre-trial relief including, without limitation, a Huntley hearing.
On August 6, nearly five months after this prosecution was commenced, the defendant appeared in court with his attorney. The Assistant District Attorney provided the court with a written memorandum of a plea offer that encompassed the pending charge as well as an unrelated but similar charge in another Justice Court in the county, the terms of which were that the defendant would plead guilty to each of the charges in each court and that sentencing would take place on "the first DA night in January, 2008" in the respective courts at which time he would be given a conditional discharge requiring him to stay away from the business properties of the complainants and that he would have to pay full restitution to the victims by the time of sentencing. Further, he would be required to "waive his rights to appeal the conviction and any sentences imposed". However, the memorandum expressly provided, should the defendant be arrested for any offense of any nature or if he entered the business premises of either or both victims while the matters were still pending, then his sentence would be "left to the sound discretion of the courts" with the explicit warning that such might aggregate two years in local jail (i.e., the maximum sentence of one year in each of the two Justice Courts to run consecutively).
The court's minutes of that evening's appearance reflect that defendant's counsel informed the court that a plea agreement had been reached and that the DA's memorandum was an accurate summary of the substance of that agreement. Defendant signed the memorandum to signify his agreement to the terms including that he would be sentenced in January. According to the court's minutes, the following colloquy then took place:
COURT:Mr. Hart, have you voluntarily signed this document and do you plead guilty to petit larceny?
MR. HART:Yes, your honor, I have signed the letter and plead guilty to petit larceny.
COURT:It is the sentence of this Court that you are given a one year Conditional Discharge base on the agreement contained in "People's Exhibit 1" (the plea memorandum).
At oral argument on this appeal, the Assistant District Attorney conceded that there was no further colloquy between the court and the defendant at that appearance in which the court informed the defendant of any particular rights or otherwise sought an assurances from him on the record that he understood the rights that he would be waiving by entering his plea. Nothing in the record shows that any objection was taken by either the People or the defendant to the court imposing the sentence of a conditional discharge immediately following the acceptance of the guilty plea.
Shortly after the August 6 appearance, the defendant was arrested on a petit larceny charge in the town of DeRuyter. The court, on September 17, 2007, issued a summons directing the defendant to appear on October 1 for a "violation of conditional discharge". The court's minutes of its proceedings on October 1 show that defendant appeared with counsel and that the Assistant District Attorney placed on the record the fact of the defendant's recent arrest in DeRuyter. Sensing that the court was about to revoke the conditional discharge and impose a sentence of incarceration, defendant's counsel objected and informed the court that it could not do so without a presentence report. The court agreed and adjourned to December 3.
On December 3, the defendant again appeared with his attorney. He was informed by the court that he was charged with violating the terms of his conditional discharge, specifically the provision "that you stay out of trouble and refrain from any further arrests for a period of one year. . . . (Y)ou have been arrested in the Town of DeRuyter for Petit Larceny which violates the Conditional Discharge." The Assistant DA asked the court to find that the defendant was in violation of the conditional discharge and to sentence him to one year in the Madison County Jail. Defense counsel asked the court to give the defendant another chance and to continue the conditional discharge. The court thereupon sentenced the defendant to one year, effectively revoking the conditional discharge.
The defendant raises three grounds on this appeal: (1) that his plea was not given knowingly, intelligently or voluntarily in that the court did not advise him of the nature of the rights that he would be waiving by doing so, (2) that the conditional discharge was improperly revoked, and (3) that the sentence was harsh and excessive in view of defendant's "unique medical condition."
In reviewing this matter, this court takes notice that the Village Justice is a non-lawyer who has served in that capacity as well as Town Justice for the Town of Hamilton for many years. He is one of the most experienced (if not the most experienced) local justices in Madison County. Similarly, the court notes that defendant's attorney in the court below is the principal public defender in this county and that he has had extensive experience in criminal trials at both the felony and misdemeanor level since 1990.
Defendant's failure to move to withdraw his plea or to vacate the judgment of conviction does not preserve his challenge to the voluntariness of his plea for appellate review. People v. Sanabria , 43 AD3d 1228 (3d Dept 2007), lv. den. 9 NY3d 993 (2007); People v. Masters , 36 AD3d 959 (3d Dept 2007), lv. den. 8 NY3d 925 (2007); People v. Saddlemire, ___ AD3d ___, 2008 NY Slip Op 03340 (3d Dept, 4/17/08). Nevertheless, were the court to consider the issue, no basis for reversal appears to exist.
It is well settled that, before accepting a defendant's guilty plea to criminal charges, the court has an obligation to ensure that the defendant is making a knowing, intelligent and voluntary decision to step out from behind the presumption of innocence and waive his right to trial. Additionally, it must appear that he has an appreciation of the likely consequences of that plea. North Carolina v. Alford, 400 U.S. 25; Boykin v. Alabama, 395 U.S. 238; People v. Ford, 86 NY2d 397 (1995). There is no particular "checklist" that the court must go through. Due process requires simply that the court have a reasonable assurance that ". . . the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant.'" People v. Louree , 8 NY3d 541 , 544-545 (2007), quoting People v. Ford, supra, at 403.
In a detailed examination of the issue, the New York Court of Appeals has said:
Though a rigorous and detailed colloquy may be appropriate in certain instances, under most ordinary circumstances such questioning by the Trial Judge would be an unnecessary formalism. The seriousness of the crime, the competency, experience and actual participation by counsel, the rationality of the "plea bargain", and the pace of the proceedings in the particular criminal court are among the many factors which the Trial Judge must consider in exercising discretion. But as we have emphasized on a previous occasion, "there is no requirement that the Judge conduct a pro forma inquisition in each case in the off-chance that a defendant who is adequately represented by counsel . . . may nevertheless not know what he is doing." People v. Harris, 61 NY2d 9, 16 — 17, (1983), quoting People v. Francis, 38 NY2d 150, 154.
Here, the crime charged and to which the defendant pleaded guilty is a class A misdemeanor, not a felony. As mentioned herein, the defendant was represented by a well-experienced attorney whose representation in this case appears to have been substantial and aggressive. The terms of the plea bargain, given defendant's criminal background, appears to have been very attractive and advantageous to the defendant, and it came after nearly five months after the commencement of the case, clearly the result of some significant negotiation.
At least one court in this State has held that it is neither realistic nor necessary ". . . to impose the rigors attendant to a felony plea (colloquy) in a superior court to misdemeanor and violation plea (colloquies) before lay judges in the justice courts. . . ." People v. Spencer, 2002 NY Slip Op 50061 (Cattaraugus Co Ct 2002). See also, People v. Seitz , 11 Misc 3d 641 (Cattaraugus Co Ct 2006).
Thus, in this case involving a relatively minor offense, where the defendant was vigorously represented by a seasoned attorney who negotiated a very sensible and beneficial compromise after significant deliberation and which would, in the absence of any violation of its terms and conditions by the defendant, have resulted in no incarceration whatever, and where the defendant himself had, over many years, amassed several prior convictions so that his was not a previously unblemished record, this court cannot find that the requirements of due process were not met. Moreover, at no time did defendant's counsel seek to re-examine the sufficiency or voluntariness of the plea ". . . on a proper and timely motion." People v. Harris, supra, at 17, thus at least suggesting that he believed that there was no basis to do so.
Next, the defendant argues that the revocation of his conditional discharge was improperly done in violation of the provisions of Criminal Procedure Law § 410.70. That statute provides that a sentence of probation or conditional discharge may not be revoked unless the court has made a determination that the defendant violated one or more of the sentence's conditions and the defendant has had the opportunity to be heard.
The "Criminal Summons" issued by the court and addressed to the defendant on September 17 indicated that there was an allegation of "violations of conditional discharge", but the specifics were not stated. The minutes of the court session on October 1 indicated that defendant and his attorney were present, but his attorney did not object to the lack of written specifics (it may be fairly inferred that both were well aware of the specifics) and there was no request made for a hearing. The only objection made on the defendant's behalf was that the court was apparently going to proceed without a presentence report.
To the extent that the failure to provide written notice of the time, place and manner in which the violation was alleged to have occurred constituted a defect in the proceeding, that defect was waived by the failure to object. Defendant's only objection was that he had not been convicted on the recent charge in DeRuyter but merely arrested.
It has been held that an arrest without proof of a conviction is a sufficient basis to revoke a sentence of probation or a conditional discharge or to enhance a pending sentence so long as the arrest was not made maliciously or without cause and so long as the defendant has had an opportunity to explain. People v. Outley, 82 NY2d 702 (1993). Here, the defendant did not deny his arrest nor did he disclaim any involvement in the alleged incident. Similarly, he did not allege that there was no basis for his arrest nor did he request any hearing to challenge the bona fides of the arrest. Defendant's right to due process was not violated by the revocation of his conditional discharge based on his subsequent arrest. People v. Figueroa, 2002 WL 1770812 (App Term, 1st Dept 2002), citing People v Diaz, 101 AD2d 841 (2d Dept 1984).
Finally, defendant alleges that the imposition of a sentence of incarceration for one year following revocation of his conditional discharge is harsh and excessive due to his "unique medical condition." That condition is a diminished capacity to control his impulses, the result of a brain injury he sustained in an automobile accident in 1980. However, the defendant's written statement, given to the police following his arrest, states that he had placed various items of merchandise in a shopping bag inside the store when he became engaged in conversation and, as a result, became distracted so that he "forgot" to pay for the items he had taken. Thus, defendant makes no claim that his actions were the result of any inability to control his impulses.
The presentence report presented to the court shows that the defendant, who was 67 years old at the time of his arrest, had an extensive history of criminal convictions. There was a petit larceny conviction in 1960, but no further criminal involvement until 1985. From that time forward, the defendant had been the subject of no fewer than 57 arrests in four states resulting in 27 prior convictions (including six felonies), principally for larceny. Additionally, at the time the presentence report was prepared, the defendant had a total of six pending prosecutions for petit larceny. Under the circumstances, notwithstanding that this was the maximum sentence permitted, this court cannot say that the sentencing court abused its discretion ( People v. Martinez , 40 AD3d 1309 [3d Dept 2007]; People v. Estreme ___ AD3d ___, 2008 NY Slip Op 03258 [3d Dept 4/11/08], or that the sentence was harsh or excessive ( People v. Christensen, 199 AD2d 649 [3d Dept 1993]).
Accordingly, the judgment of conviction and the resulting sentence are affirmed. The stay of defendant's sentence previously granted herein is vacated. Bail previously ordered for him is exonerated upon his surrender to the custody of the Madison County Sheriff to complete his sentence of incarceration as ordered by the court below.
IT IS SO ORDERED.