[*1]
People v "CS"
2014 NY Slip Op 50110(U) [42 Misc 3d 1220(A)]
Decided on January 28, 2014
Rochester City Ct
Morse, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on January 28, 2014
Rochester City Ct


The People of the State of New York

against

"CS" an apparently eligible youth, Defendant.




13-05552



The People were represented by the offices of Sandra Doorley (the Monroe County District Attorney) and Timothy Donaher (the Monroe County Public Defender).

Thomas Rainbow Morse, J.



The defendant in this case was arraigned on felony charges of Robbery and Grand Larceny based on allegations that he and another individual forcibly stole someone's cell phone. Shortly after the incident, he provided the police with a statement outlining his involvement in the crime.[FN1][FN2] Counsel for the defendant engaged in extensive plea negotiations with the DA's office which resulted in a plea before this court to Petit Larceny. At the time the misdemeanor plea was entered, the defendant and his attorney signed a "CPL §180.50(3)(a)(iii) - Rights Waiver" in which the defendant and the attorney both acknowledged that any sentence promise by the court was premised on full cooperation with probation in preparation of the Pre-Sentence Investigation (PSI).[FN3] After receiving that assurance in the written waiver, the court exercised its discretion in the interest of justice to allow the proposed misdemeanor plea with a sentence of thirty days shock probation and adjudication as a youthful offender as long as the defendant kept his [*2]promises to the court between the time of the plea and the time the sentence was to be imposed. At his point, however, it is the court's position that the defendant has yet to "cooperate fully with probation" as required by the court. Thus, he may risk receiving an enhanced sentence.[FN4]

Although this young defendant has previously been told that the court expects he will speak with probation about the crime to which he entered a plea, he has yet to do so. That such a conversation has not taken place is troubling to the court. Even more disturbing is the apparent reason why this important aspect of any PSI is absent from its pages. Initially, his attorney requested that probation not speak to him about the offense and they acquiesced.[FN5] Thereafter, although it was clearly indicated in open court that an up-dated PSI was being ordered so it would include the interview of the defendant about the petit larceny, the second PSI again lacked this critical component.[FN6] When the case was called earlier this month, it needed to be adjourned once more so that it would include an interview of the defendant about the offense. Given either apparent willful disregard of the court's prior orders or an ill-advised and unfortunate misconception of the relative roles of the parties in this case, the court apprised the defendant that it was ordering him to speak to the probation officer about the Petit Larceny. He was directed to do so regardless of what others may have told him since this court needs that information to be part of the pre-sentence investigation it has ordered. After reading this opinion, there should be no misunderstanding by anyone that in this matter or in future cases before this court full, complete, or 100% cooperation with probation in the preparation of a pre-sentence report must include the defendant's truthful answers to questions about the crime to which the defendant entered a plea![FN7]

When a defendant is interviewed for a PSI following a plea of guilty he or she is no longer cloaked with the presumption of innocence regarding that offense.[FN8] That presumption disappears at the same time the defendant hopefully takes his or her first step toward [*3]rehabilitation by admitting the mistake made. Unlike a PSI ordered after an Alford plea[FN9] or following a trial verdict,[FN10] there is no reason acceptable to this court for a defendant not to speak to probation about the crime to which a plea was entered when the plea bargain included a judge's conditional sentence promise and a defendant's waiver of appeal.[FN11] Since "an allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime,"[FN12] the defendant's frank admission of criminal conduct may be the court's only gauge of self-reproach. That unique part of probation's PSI is vital to the judge who has the responsibility of imposing a just sentence.[FN13]

Most often the defendant will express remorse to the probation department for the crime committed.[FN14] If the PSI also reports that the victim is recommending leniency, or that the defendant undertook drug, alcohol, mental health or domestic violence treatment prior to the plea or that the defendant has already fully paid restitution, such factors together with the defendant's statement may result in a sentence less onerous than the one initially agreed upon.[FN15] At times, the defendant will outline a defense such as justification or intoxication to the probation officer which the sentencing court is obligated to address to make sure the plea already entered was truly taken "knowingly, intelligently and voluntarily." Moreover, it is not unheard of for a defendant to allege to a probation officer that he or she was pressured into entering the plea by defense counsel, that counsel did not fully explain the alternatives faced, or that he or she did not commit the offense.

In those later cases, allowing a defense attorney to dictate the scope of a court ordered PSI may mask the presence of ineffective assistance of counsel. By choosing to take direction from [*4]any party interested in the PSI other than the judge who ordered it, the probation department risks the impartiality which our community expects in a court ordered pre-sentence report. Furthermore, the position that the parameters of the PSI are set by the Judge, not the prosecutor or defense counsel is supported by several provisions of the Criminal Procedure Law (CPL) which explicitly require that in preparing the PSI the designated agency "must include any matter the court directs to be included."[FN16] Both the prosecutor and defense counsel may submit their own pre-sentence memorandums to the court prior to sentencing and the court may choose to hold a pre-sentence conference "to...resolve any discrepancies between the pre-sentence report...and the defendant's or prosecutor's pre-sentence memorandum."[FN17] Neither the Executive Law[FN18] nor the CPL allocate authority to prosecutors or defense counsel to direct how the probation office should attend to its responsibilities. Instead, the legislature and the sentencing court are empowered to dictate to probation what information should be contained in a pre-sentence investigation.[FN19]

The defendant's position that sentencing should proceed even though the defendant has not spoken to probation about the crime is unpersuasive in negotiated plea cases.[FN20] In fact, our [*5]highest court has held that if a defendant has been advised accordingly, a judge at sentencing may consider whether a defendant candidly and completely cooperated with probation and truthfully answered all of the questions posed by the probation officer.[FN21] In a unanimous decision by Judge Kaye, the Court of Appeals noted that "[c]onditions agreed upon as part of a plea bargain are generally enforceable, unless violative of statute or public policy. Additionally, even where a plea agreement has been reached, and a defendant has entered a plea in reliance on the agreement, it is ultimately up to the court to impose what it considers an appropriate sentence."[FN22] The court went on to list specific components of the PSI followed by the understandable conclusion that it can encompass "other information the court directs to be included."[FN23] After observing that a "presentence report may well be the single most important document at both the sentencing and correctional levels of the criminal process," Judge Kaye went on to find the "[d]efendant's failure to answer the Probation Department truthfully about his crime hindered the preparation of an accurate report for the court's use at sentencing."[FN24]

Just as drug, alcohol and mental health treatment, vocational training and educational opportunities may be important components of an appropriate sentence, the future safety and security of our community depends in part on an offender's acceptance of responsibility for his or her transgression which hopefully will progress to a greater appreciation of the impact of the criminal conduct on the victim and an enhanced understanding of the effects of criminal behavior on our community as a whole.

At this point, hopefully, the defendant will truthfully answer any and all questions put to him about the crime to which he pled and the court will be able to sentence him in accordance with its sentence promise on the fourth date set for that purpose. If he does not do so the court will consider allowing him to withdraw his plea[FN25] or the court will schedule an Outley hearing[FN26] to determine whether he has failed to adhere to the court's direction that he speak truthfully to [*6]probation about the offense.[FN27]

In any event, this court would never have agreed to amendment of the felony charges "in the interest of justice"[FN28] with a promise of Youthful Offender Adjudication and thirty days shock probation had it understood that the defendant would not truthfully answer questions about the crime to which he pled. Accordingly, if the court does not have that information in the PSI on the next adjourned date, the court will consider vacating the plea entered by the defendant, vacating the amendment of the two felony charges, reinstating the felony complaint and the scheduling the Grand Larceny and Robbery charges for a preliminary hearing.[FN29]

The foregoing constitutes the decision and order of the court.

Enter

Dated:January 28, 2014________________________________________

Rochester, New YorkHon. Thomas Rainbow Morse, JCC

cc:Hon. William Kocher, Surpervising Judge of Criminal Courts, 7th Judical District

Hon. Teresa D. Johnson, Supervising Judge of City Courts, 7th Judicial District

Sandra Doorley, Monroe County District Attorney

Timothy Donaher, Monroe County Public Defender

Charles T. Noce, Monroe County Conflict Defender

Robert Burns, Director, Monroe County Probation Department

Paul. D. MacAulay, Esq., Chair, MCBA Criminal Justice Section

Footnotes


Footnote 1:Based on review of the pre-sentence investigation it appears the defendant may be a mandatory youthful offender. Thus, his name is not used in this opinion even though he has yet to be sentenced.

Footnote 2:In his statement, which was part of the three page felony complaint filed in this case, he noted "I apologize for what I did, It was stupid and I'd like to show the police where the phone is so the kid can have it back."

Footnote 3:In addition, the defendant was told "to cooperate fully with probation...so I have a full picture in front of me at the time of sentencing."

Footnote 4:See People v. Vaillant, 77 AD3d 1389(4th Dept., 2010); People v. Perkins, 188 AD2d 281(1st Dept., 1992).

Footnote 5:In the first PSI the court learned that counsel for the defendant had requested "that the defendant not discuss the present offense" and that he "stands by his plea".

Footnote 6:When the defendant was again interviewed by probation in October the probation officer once more acceded to the request that the defendant not be asked about the offense.

Footnote 7:See e.g. People v. Patterson, 106 AD3d 757(2nd Dept., 2013)("The condition of the defendant's plea that he cooperate with the probation department was explicit and objective, and was acknowledged, understood, and accepted by the defendant as part of the plea agreement ") also People v. Faulkner, 54 AD3d 1134. 1135(3rd Dept., 2008) and People v. Kinloch, 7 AD3d 734, 735(2nd Dept., 2004) (" youthful offender was conditioned upon the defendant speaking truthfully with the probation officer who would be conducting the interview for his pre-sentence report") .

Footnote 8:Compare People v. Brady, 97 NY2d 233, 236(2002)(When a defendant waives fifth amendment rights at the time of entering a plea, he no longer has a right to remain silent regarding that offense) with Mitchell v. U.S., 526 U.S. 314, 330(1999)(retain right to silence in federal courts with sentencing under federal procedure).

Footnote 9:In the case of an Alford plea, North Carolina v Alford, 400 US 25(1970), the court would understandably only expect the defendant to say that he or she is innocent but accepted a plea bargain only to avoid the possibility of a conviction based on the People's proof, which might have resulted in a more severe sentence. Compare Sillmon v. Travis, 95 NY2d 470, 477-78(2000)(denial of parole not abuse discretion when a defendant fails to accept responsibility for the crime underlying the Alford plea which resulted in a sentence of 5-15 years).

Footnote 10:After a trial verdict of guilty, it is unlikely a defendant would admit criminal responsibility when innocence has been maintained all along - counsel planning an appeal may direct the client not to talk about the crime.

Footnote 11:If counsel for a defendant feels otherwise, then that attorney should voice that opinion at the time he or she asks this court to accept a plea or this court will assume that the defendant will speak to probation about the offense to which a plea was entered.

Footnote 12:People v. Goldstein, 12 NY3d 295, 301(2009).

Footnote 13:See People v. Farrar, 52 NY2d 302, 305(1981)("the sentencing function rests primarily with the Judge, whose ultimate obligation is to impose an appropriate sentence and who must exercise his or her responsibility at the time of sentencing in the light of information obtained from the presentence report....").

Footnote 14:As presumably he will in this case given his initial reaction upon arrest. See People v. Cubi, 104 AD3d 1225, 1226(4th Dept., 2013).

Footnote 15:Such an outcome has happened on a number of occasions in this court. Compare People v. Crump, 107 AD3d 1046(3rd Dept., 2013)(when defendant pled to entire indictment, the court considered genuine contrition in imposing a lesser sentence than that requested by the People).

Footnote 16:Criminal Procedure Law (CPL) § 390.30(1); see also CPL §§ 390.30(3)(a) and 390.30(4)(b). . Such a guideline "is fair because it does not favor one party over the other." People v. Boyer, 22 NY3d 15, 26(2013)

Footnote 17:CPL § 400.10(1). One of the interesting distinctions between the now circumscribed Fourth Department decision in People v. Parker relied on by the defendant here and the definitive contrary ruling two years later by the Court of Appeals in People v. Hicks is that Parker relied on the language in Penal Law § 65.10 and CPL §400.10(4) which covers conditions pending sentencing during adjournments after pre-sentence conferences whereas the final word on PSI components comes from the provisions of CPL § 390.30. Compare People v. Parker, 271 AD2d 263(4th Dept., 2000), lv. denied 95 NY2d 967(2000) with People v. Hicks, 98 NY2d 185(2002).

Footnote 18:Executive Law Articles 12 and 12- A. See Williams v. NY, 337 U.S. 241, 249(1949)("Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders."). Compare People v. Kelly, 88 NY2d 248, 253(1996)(although Parole & DOCS may perform "ancillary law enforcement' tasks" for those under supervision they "are members of the State Executive Branch"and don't represent "The People" for purposes of Rosario analysis).

Footnote 19:Although Probation Departments were once administered by the court system, Bowne v. County of Nassau , 37 NY2d 75(1975), they are now a critical executive component providing necessary collateral services to our courts and communities. See Executive Law § 257(4)(reports "to the court" on current probationers).

Footnote 20:People v. Parker, 271 AD2d 263(4th Dept., 2000), lv. denied 95 NY2d 967(2000). The precedential value of this case and the Second Department cases it relies upon, however, appears to have been called into question by the unanimous decision of the New York Court of Appeals two years later when the same trial court's imposition of an enhanced sentence for essentially the same reasons was appealed by the same office which presently represents the defendant in this case. See People v. Hicks, 98 NY2d 185(2002)(reversing the modified sentence imposed by the 4th Department and re-instating the enhanced sentence handed down by the trial court).

While Judge Kaye's unanimous decision for the court in Hicks, references the Parker decision, the Court of Appeals was not persuaded by Parker's holding. The Court of Appeals considered and found "without merit" the identical arguments raised in both cases "that the court acted inappropriately in departing from the negotiated agreement, first because breach of a condition to answer truthfully is necessarily subjective, and second because—unlike factors like family background and personal history—failure to acknowledge guilt to a probation officer is not directly related to the court's sentencing function." Id. at 188(footnote omitted).

Footnote 21:People v. Hicks, 98 NY2d 185(2002).

Footnote 22:Hicks at 188(emphasis added and citation omitted).

Footnote 23:Hicks at 188.

Footnote 24:Hicks at 188-89. Compare People v. Gonzalez, 9 Misc 3d 344 (Sup.Ct., Ambrecht, J., 2005) reversed on other grounds 48 AD3d 226(1st Dept., 2008) lv. to appeal denied 10 NY3d 709(2008) and People v. Grimm, 19 Misc 3d 114(A)(Sullivan County Ct., LaBuda, J., 2008) reversed on other grounds 69 AD2d 1231(3rd Dept., 2010) lv. to appeal granted 14 NY3d 888(2010).

Footnote 25:People v. Coffey, 77 AD3d 1202, 1203-04(3rd Dept., 2010); People v. Coble, 17 AD3d 1165,1166 (4th Dept., 2005) lv. denied 5 NY3d 787(2005); People v. Rubendall, 4 AD3d 13, 19-20(2nd Dept., 2004).

Footnote 26:People v. Outley, 80 NY2d 802(1993); People v. Powell, 55 AD3d 632, 633-35(2nd Dept, 2008) People v. Butler, 49 AD3d 894, 895(2nd Dept., 2008). cf. People v. Hodgins, __ AD3d __, 977 N.Y.S.2d 658(4th Dept., 2014); accord People v. Malaj, 69 AD3d 487(1st Dept., 2010) lv. denied 15 NY3d 776(2010)(improper sentence appeal "is unpreserved since defendant neither requested a hearing nor moved to withdraw his plea."); People v. Saucier, 69 AD3d 1125(3rd Dept., 2010).

Footnote 27:People v. Zobe, 82 AD3d 1017, 1018-19(2nd Dept., 2011).

Footnote 28:CPL § 180.50(2)(b)(i).

Footnote 29:See People v. Missrie, 13 AD3d 256, 257(1st Dept., 2004) lv. denied 4 NY3d 833(2005) ("Defendant was entitled only to vacatur of the plea and restoration to his position prior to entering the plea."). A court always retains the discretion to choose among the legally available alternatives at the time of sentencing and "[a]ny attempt to undermine judicial control in the sentencing process must be rejected." People v. Selikoff, 35 NY2d 227, 241(1974); See also People v. Monroe; 21 NY3d 875, 878(2013); People v.Collier, __ NY3d __, 2013 WL 6499381(decided 12/12/13); People v. Herber, 24 AD3d 1317(4th Dept., 2005).