Opinion
Indictment No. 2040/2020
06-20-2023
The People of the State of New York, v. Ricardo G., Defendant.
For the defendant, Andrea Ferrante, Esq., Staten Island, NY For the People, Eric Gonzalez, District Attorney Kings County, Brooklyn, NY (Jessica White, Assistant District Attorney).
Unpublished Opinion
For the defendant, Andrea Ferrante, Esq., Staten Island, NY
For the People, Eric Gonzalez, District Attorney Kings County, Brooklyn, NY (Jessica White, Assistant District Attorney).
MATTHEW J. D'EMIC, J.S.C.
The defendant moves for an order vacating his conviction; or, in the alternative, an order granting an evidentiary hearing thereon.
Upon consideration of the defendant's moving papers, the People's opposition, and the court record, the court determines that the motion is denied in its entirety, without a hearing, both on procedural grounds as well as on the merits after deeming the application to be one made pursuant to C.P.L. § 220.60 (3).
Following an incident which took place on July 30, 2020, after initially being charged and arraigned in New York City Criminal Court, Kings County, the defendant was ultimately indicted and charged under the captioned indictment with the offenses of Attempted Criminal Sexual Act in the First Degree (1 count), Sexual Abuse in the First Degree (2 counts), and other related offenses, in addition to Criminal Impersonation in the First and Second Degrees.
It is alleged that the defendant accosted the complainant at around 6:00 AM while she was running, and after representing that he was an employee of the New York City Police Department, he grabbed her breast and buttocks and also demanded that she perform oral sex upon him. However, bystanders interceded and restrained the defendant until the police arrived.
Mr. G. was arraigned in Criminal Court on July 31, 2020, and the court also ordered a psychiatric examination pursuant to CPL 730. Thereafter, following the examination which was conducted on December 7, 2020, the defendant was found fit to proceed. With the defendant having been indicted in the interim, the matter was transferred to Supreme Court.
Mr. G. was arraigned on the indictment on January 29, 2021 and pled "not guilty" to all counts.
Thereafter, on July 8, 2021, the defendant's case was transferred to Brooklyn Mental Health Court to explore the defendant's eligibility for acceptance into a mental health treatment program.
The defendant was assessed and it was determined that he was a good candidate for diversion into the Mental Health Court.
The People allege that the defendant underwent a psycho-social interview with the Brooklyn Mental Health Court Team on August 12, 2021. He then underwent a forensic-psychiatric evaluation on September 30, 2021; Dr. Miranda Rosenberg had performed the psychiatric examination of Mr. G. In their report, dated October 19, 2021, she and Dr. Alexander Sasha Bardey opined that Mr. G. would be a good candidate for the Mental Health Court program. While he suffered from Schizoaffective Disorder, Bipolar Type, Mr. G. "appear[ed] to be very successful in [his current treatment program where he was receiving counseling and medication management]. Dr. Rosenberg found "Mr. G.'s thought processes [to be] linear, coherent, relevant and goal-oriented, with no apparent delusional content; and during his examination interview, Mr. G. "demonstrated very strong insight into his mental illness" and also a "rational understanding of his charges, the proceedings in which he is involved, and the nature and rules of the Brooklyn Mental Health Court."
Accordingly, Mr. G. was offered a mental health treatment program, which included a conditional plea agreement. By its terms, the defendant would plead guilty to one count each of Attempted Criminal Sexual Act in the First Degree (a "C" felony) and Sexual Abuse in the First Degree (a "D" felony). If Mr. G. successfully completed the program, his guilty plea upon the first count would be vacated, and he would be sentenced to 10 years of Probation supervision upon the latter offense. If the defendant did not successfully complete the program, he would instead be sentenced, upon the first count, to three and one-half years' incarceration and 10 years of post-release supervision. Both plea sentences also carried final orders of protection and mandatory registration under the Sex Offender Registration Act ("SORA").
On November 17, 2021, the defendant entered pleas of guilty to the crimes of Attempted Criminal Sexual Act in the First Degree (Penal Law §§ 110.00 and 130.50 [1]; Count 1 of the indictment) and Sexual Abuse in the First Degree (Penal Law § 130.65 [1]; Count 4 of the indictment).
As the plea minutes bear out, prior to entering his guilty pleas and allocuting to the two offenses, the defendant was fully apprised of all of the terms of the plea agreement, including SORA registration, and Mr. G. acknowledged his understanding of the plea terms (see Plea Mins. at 2-3; 3-4). The defendant had counsel with him during these proceedings and was able to confer with him during the allocution. Further, the court had cautioned the defendant that the plea would be final, and that the court needed to ensure that the defendant knew what he was doing. Mr. G. responded, "Yes."
Following his entry of these guilty pleas, Mr. G. complied with the Mental Health Court program mandate, appeared in court regularly, and the court received periodic updates on his progress, which reports were positive.
Having completed the program and with final sentencing impending, the defendant has now brought the instant motion, by new assigned counsel. Although incorrectly denominated an application to vacate his conviction, Mr. G. now seeks to withdraw his guilty pleas and restore his "not-guilty" pleas to the entire indictment.
The instant motion is not properly brought pursuant to CPL article 440. Because there is no final judgment of conviction yet entered here since the defendant has not been sentenced (see CPL § 1.20 [15]), no motion to vacate judgment under CPL § 440.10 here lies. However, while the instant motion is accordingly deniable on procedural grounds, this court declines the People's suggestion to summarily deny the motion as such and not reach the merits. Rather, the court deems the defendant's motion to be one brought pursuant to CPL § 220.60 (3), and is deciding the application for plea withdrawal upon its merits.
In support of this motion, the defense claims that Mr. G.'s plea "was neither voluntary, knowing, or intelligent [because] there was a serious question as to whether [he] was competent in this case." Asserting that Mr. G. was not properly medicated and was suffering from delusions when he was arrested, the defense maintains that he was "under this same state and frame of mind" when he entered his plea under this indictment, and that he did not fully understand the pleas he was entering nor that it would require SORA registration.
Included in the motion papers is Mr. G.'s affidavit, expounding upon these claims.
Opposing the motion, the People maintain that the defendant knowingly, intelligently, and voluntarily agreed to the terms of the plea agreement. The court herein also so finds.
While Mr. G. claims that he was not in a stable and healthy frame of mind when he entered his pleas and was not properly medicated at the time, the record and this court's own observations indicate the contrary.
Firstly, a review of the transcript of the plea proceedings reveals nothing which would call into question the voluntariness of the defendant's plea. Rather, the defendant clearly and unhesitatingly appropriately responded to all questions posed, and affirmatively acknowledged his understanding of all the terms and conditions of the plea, and that it would be final; and he freely admitted his guilt. Further, nothing in the defendant's demeanor, behavior, or words demonstrated otherwise.
There is no basis in the record to conclude that the defendant was mentally incapacitated when he entered his plea (see People v. Taylor, 292 A.D.2d 637, 638 [2d Dept. 2002]).
Long before Mr. G. ever came before the Mental Health Court, he had undergone a CPL 730 examination in December of 2020, and was found fit to proceed. By that time the defendant was receiving antipsychotic medication regularly and there was no evidence of thought disorder, delusional thinking, or active hallucinations (see People's Exhibit 1). At no subsequent point in time was the defendant's mental fitness to proceed ever called into question: no other CPL 730 exam was ever requested. Indeed, upon Dr. Rosenberg's psychiatric examination (on September 30, 2021), she found that Mr. G.'s mental illness disorder was being successfully managed by his treatment program; and this treatment has continued throughout the pendency of these proceedings.
This court relies upon these findings; and the court's own interactions with the defendant during the entire pendency of this case and its observations of the defendant at every court appearance, both prior to and after the entry of the pleas herein, only serve to confirm the conclusion that the defendant was mentally competent to enter these pleas (see generally, People v Morgan, 87 N.Y.2d 878 [1995]).
This court concludes that, notwithstanding that he suffers from a mental illness, the defendant's plea was knowingly, voluntarily, and intelligently entered and that the defendant fully understood the implications and consequences of his plea (see generally, People v Seeber, 4 N.Y.3d 780, 780-782 [2005]), including that he would be subject to SORA registration.
Accordingly, the court denies the defendant's application to withdraw his pleas and have the indictment reinstated, and no hearing is necessary here (see People v Bangert, 107 A.D.2d 752 [2nd Dept. 1985]).
This constitutes the decision and order of the court.