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Both defendants moved to exclude any evidence of prior convictions of the defendants

In a criminal case, the chief point urged on appeal by defendant is that the court had previously accepted a plea of guilty to the lesser crime of attempted criminal possession of a dangerous drug in the fourth degree, a Class E felony, to cover the entire indictment; that thereafter, the court unilaterally set aside that plea and directed a trial upon which the defendants were convicted of the Class C felony for which they were indicted and for which they have now been sentenced. In essence this is a claim of double jeopardy.

A Bronx County Criminal attorney said that, in court’s view, the fair meaning of the proceedings that took place at the time of the vacating of the plea to the Class E felony was that the defendant applied to withdraw his plea of guilty and the court granted that application, and this was the understanding of all at the time.

While the court are here discussing the defendant, some light is cast on the matter by the proceedings with respect to the co-defendant whose case is in almost all respects identical with the case; most of the proceedings were joint proceedings, including the original plea and the trial. The only difference is that second case’s attorney explicitly moved to withdraw the plea in so many words while the defendant in the first case’s attorney did not use those precise words. But the entire proceedings make it clear that that is what the defendant was doing.
The suppression hearing was in progress when the defendants withdrew their motion to suppress and asked to withdraw their plea of not guilty to the indictment and to enter a plea of guilty to the Class E felony of attempted possession of a dangerous drug in the fourth degree. The district attorney stated that he would recommend a sentence of one year in prison for each defendant. The district attorney stated that if the court did not follow the recommendation of the People, the People would have no objections to defendants’ withdrawing their pleas.

After consultation between defendant in the first case and his attorney, the defendant made the following unusually explicit statement:“THE DEFENDANT: I’ll take my plea back on the day of sentence if you don’t go along with the recommendation.
THE COURT: All right, I’ll let you withdraw your plea if I don’t go along with the recommendation.

At the time for sentence on the plea, the court, having considered the probation report, decided that he would not follow the district attorney’s recommendation for a one year sentence. The sentence of the co-defendant up first and the court immediately stated that he could not go along with the recommendation and that the co-defendant would be permitted to withdraw his plea of guilty. After some further discussion, the co-defendant’s attorney explicitly stated, ‘the defendant then desires to withdraw his plea of guilty and proceed’ and he also withdrew the previous withdrawal of the motion to suppress.

On the same day the proceedings with respect to the defendant took place. Again the court stated that he could not go along with the one year recommendation and stated that he had said at the time the plea was entered that if he could not do so with respect to this defendant, ‘the court would permit him to withdraw his plea. The court then stated some things about the probation report and then said: ‘Based on all of these circumstances this court at this time will entertain a motion by counsel to withdraw his plea of guilty and to reinstate his plea of not guilty and set a date for trial.’ Davis’ attorney then stated that there had been some discussion of commitment of the defendant to NACC (Narcotic Addiction Control Commission) and made a plea that the court should sentence the defendant to NACC.

It is apparent that the court thought that the defendant was moving to withdraw his plea and not that the court was acting unilaterally. The notation made at the time on the back of the indictment by the clerk and signed by the judge .

The judge was justified in interpreting defendant Davis’ attorney’s remarks as withdrawal of the plea. Having asked that the defendant be committed to NACC, the attorney said, ‘if not Judge, I’m going to request that the minutes, the hearing be held de novo.’ This was a reference, of course, to the suppression minutes and hearing. There would be no point to starting a new suppression hearing if defendant’s plea of guilty still stood.

The judge said that he was granting ‘the application to withdraw the plea of guilty.’ ‘Notably, the attorneys did not object or move to correct the record.’ Instead, defendant’s attorney asked that the case proceed immediately. A major purpose of requiring a party to make known his objection to an action by the court is so that the court shall have ‘an opportunity of effectively changing the same. If the defendant’s attorney at that point had thought and said that he had not made an application to withdraw the plea of guilty, there can be no doubt that the court would have required him to say whether he was or was not moving to withdraw the plea. Defendant’s attorney did not suggest in any way to the court that the court’s interpretation was incorrect. But now appellate counsel reading the cold record urges us to interpret what took place in a way different from what the parties understood at the time.

If the court had unilaterally and improperly purported to set aside a plea of guilty, the defendant would have had a of previous prosecution to any further proceedings which would be the subject matter of a motion in the trial court to dismiss the indictment. ‘The jeopardy claim, amounting to a collateral attack upon the prosecution, is treated in the CPL as a contention to be advanced upon a pre-trial motion to dismiss the indictment. Defendant neither moved to dismiss nor instituted an Article 78 proceeding.

Plainly, rather than be sentenced to something more than one year imprisonment, defendant chose to gamble on a trial. His attorney said so explicitly at the time of sentence after the conviction, referring to the plea of not guilty as a ‘gamble’ with the ‘odds’ changed by the hearing testimony so as to make ‘the entry into the gamble far more attractive.’ The ‘entry into the gamble’ After the hearing testimony could only refer to the withdrawal of the plea of guilty.
Having lost the gamble despite the attractiveness of the odds, defendant through his appellate counsel has nothing to lose by urging that the gamble should be disregarded and that he should be reinstated to the position before he chose to gamble. In this respect, the situation is quite similar in a case where the court held: ‘Now that the issue has been resolved against the defense, appellate counsel–who represents by assignment of this court and who has undertaken his task with ability and imagination–may, with complete safety to appellant, speculate at length upon a whole series of hypotheses It is, of course, understandable why trial counsel did not argue in that way upon the trial before the case was submitted to the jury. And we suspect that the defendants would have been quite dismayed, while the verdict was still in doubt.

Both defendants moved to exclude any evidence of prior convictions of the defendants on cross-examination if the defendants testified. The court denied the motions and both defendants urged error.

The case was tried before the decision of the Court of Appeals which ‘sets some boundaries to the scope of cross-examination permitted in the past.

The Court thinks that the court exercised and did not abuse its discretion and that a reversal is not warranted. Defendant Davis had what the court at sentence called ‘an extensive criminal background.’ These crimes, as brought out in connection with the motion, included assault and robbery, a grand larceny automobile arrest which had apparently resulted in a felony conviction for which he served time in state prison, possession of drugs, resisting arrest, and criminal sale of dangerous drugs.

Although the trial judge obviously did not have the benefit of the Court of Appeals’ decision in a case, rendered a year after trial, it is plain that he did exercise discretion. He discussed the considerations each way that bear on cross-examination of a defendant as to prior convictions. He inquired as to the specific crimes of which the defendants had been convicted. And the explicitly stated that his ruling did not go beyond what he understood the crimes to be.

Plainly, the crimes did reveal ‘a willingness or disposition on the part of the particular defendant voluntarily to place the advancement of his individual self-interest ahead of principle or of the interests of society. Plainly, the robbery and auto charges were ‘crimes or acts of individual dishonesty, or untrustworthiness which the Court of Appeals recognized ‘will usually have a very material relevance, whenever committed.

The defendants, instead of informing the court of their prior convictions and misconduct, actually misrepresented the extent of their prior convictions and misconduct, apparently even to their own lawyers. It was the district attorney who had to point out that the lawyers were wrong in saying there were no crimes of moral turpitude and only drug offenses.

The court do not think either that the trial court abused its discretion or that the defendants met their burden of demonstrating that the prejudicial effect of admission ‘of evidence thereof for impeachment purposes would so far outweigh the probative worth of such evidence on the issue of credibility as to warrant its exclusion.

In the second case, the major contention here by the defendant relates to the denial of the motion to exclude cross-examination as to prior convictions. The discussion of this point with respect to defendant sufficiently covers the matter. The court add only that in the second case, the previous crimes in addition to drug charges included a grand larceny auto charge for which he received a reformatory sentence and a youthful offender adjudication for what would otherwise have been a conviction for assault in the third degree arising out of an alleged forcible sodomy. There was also a charge of possession of a dangerous weapon, as to which the district attorney did not know whether there had been a conviction and the defendant did not enlighten the court.

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