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Defendant sustained his burden of proof under C.P.L. 400.21.


In Supreme Court, Bronx County, the defendant pleaded guilty to robbery in the second degree. Such plea covered the entire indictments. In support, defendant submits that the allocution was factually insufficient because it did not contain a statement of affirmation by the defendant that “force”, an essential element of the crime of robbery in the second degree, was used or threatened during the crimes. Additionally, Davis contends the allocution was factually insufficient as to the lesser included offense of grand larceny in the third degree in that there was no statement or affirmation by the defendant that any property was taken from the complainant’s person.

A Bronx County criminal lawyer said that the People submit that, according to applicable case law, the allocution was sufficient absent a statement by the defendant on the use of force. The People further contend that the context of the allocution establishes that defendant knowingly pleaded guilty to robbery with the use of force, in that, during the pre-allocution colloquoy, the Prosecutor described for the Court the crime where the defendant and his accomplice “used knives and they took money from [the victim]”.

The issue to be resolved is whether omission of an essential element (“force”) of a felony, robbery in the second degree by defendant, represented by counsel, and the court during the factual allocution of a guilty plea to a prior felony conviction is legally sufficient as the constitutional basis for a predicate felony sentence.

The Court held that the content of a defendant’s allocution has been the subject of frequent judicial review, based upon: (1) waiver of defendant’s certain constitutional rights and (2) defendant’s statement of the factual circumstances underlying the crimes charged. There is a general principle that the entire process of plea bargaining and admission of guilt by defendant must be a voluntary and intelligent choice among alternative courses of action. Generally, the validity of any waiver of rights must be tested according to constitutional standards.

Defendant need not be separately advised of and specifically waive all of his constitutional rights to (1) trial by jury, (2) the privilege against self-incrimination and (3) the right to confront one’s accusors, if when the plea is entered, the defendant sufficiently understands the nature of the charges, his right to trial by jury, the elements of the offense and the range of permissible offenses so as to “knowingly, voluntarily and intelligently” relinquish his constitutional rights upon the plea. The plea cannot be voluntary unless the defendant obtains “notice of the true nature of the charge against him”.

Although the Court of Appeals’ decision required that the defendant fully understand the connotation of the plea, it did not give an explanation how the defendant would explicitly waive the enumerated constitutional rights. In five (5) of the six (6) cases consolidated under Harris, the Court upheld the pleas determining that, despite the lack of specific waivers of all the described constitutional rights, the plea record revealed that each defendant understood the consequences of the plea, entered the plea voluntarily and “acknowledged” or “admitted” the facts underlying the offenses.

In noting the defendant’s recitation of the facts and by requiring that the defendant understand the elements underlying the crime, defendant endorses a line of cases, which mandated that the requisite elements of the crime appear in defendant’s recitation. Thereby, on this point, Harris undermines, if not overrules, the continued vitality of previous cases.

Although the prior cases analyzed the validity of guilty pleas only in the context of attempts to directly set aside a current conviction, the general principles enunciated therein also are applicable to the context of a predicate felony sentencing hearing. Further, the established principle that an attempt to set aside a conviction upon a guilty plea will fail in an appellate court if the issue(s) was (were) not raised and preserved in the Court of first instance by a pre-sentence motion to withdraw the plea or post-sentence motion to vacate the judgment of conviction, is not applicable in the predicate felony sentencing situation.

While the People have the burden of proving beyond a reasonable doubt the existence of a previous felony conviction, the defendant must prove facts that establish that such conviction was unconstitutionally obtained. It must be emphasized that, in each situation, the consequences of an unfavorable review of the plea allocation is distinct and distinguishable, in fact and law. If a plea is not upheld upon the motion to set aside an original conviction, then that conviction is overturned and defendant is at liberty. In contrast, if the plea upon a prior conviction is not upheld in the predicate sentencing situation, the consequence is a shorter sentence, as a first felon, upon the subsequent conviction.

This Court does not seek to penalize society by an unreasonably narrow application of constitutional principles in the original conviction situation. These resulting penalties are the costs of re-prosecuting the defendant a second time and the ensuing delay by the eventual appeal which would deny fair, swift and certain justice, under an administrative cost-benefit analysis. Further, this Court decision does not, by content or consequences, increase the fear that successful challenges of plea convictions after guilty pleas will unravel the entire criminal justice system. Society is not so penalized nor is the plea bargaining system so threatened in the predicate sentencing (second or third conviction) situation by simply requiring that the Court carefully enforce a defendant’s constitutional right during a guilty plea allocution.

The First and Second Departments have rendered divergent opinions on the necessity for a complete factual allocution by a defendant upon a guilty plea. The First Department has approvingly cited a case requiring that a defendant’s recital include the “requisite elements” of the crime.

In contrast, the Second Department has produced a long line of cases citing another case, holding a guilty plea without such a factual recitation if there is no suggestion “in the record or dehors the record that the guilty plea was improvident or baseless,” particularly where defendant was actively represented by counsel and made no effort to withdraw the guilty plea.

If the defendant does not make any factual recitation on the record, however, how can a subsequent court reviewing the plea transcript, upon appeal, or at a predicate/persistent felony sentencing have a reasonable and constitutional basis to determine that a knowing and voluntary choice was made by defendant?

However difficult it is for the original sentencing Judge or Justice to be assured of defendant’s understanding of the plea and its consequences without eliciting from defendant a recitation, on the record, of the facts to which defendant admits, it is nearly impossible for the second or third sentencing Judge, or Justice, wholly dependent upon the original allocution transcript, to be constitutionally assured that defendant was actively or effectively represented by counsel, especially in a busy Conference Part with an enormous calendar, as herein, or a future 1986 Individual Assignment (IA) growing calendar.

The rush to endorse guilty pleas may be related to administrative policy in an overloaded criminal justice system substantially subsidized by plea bargaining; however, the administration of justice must never yield to an injustice of administration. Even while affirming the plea in a case, the Court of Appeals felt constrained to note that “[w]hile the essence of justice may be procedure there can be a point at which the administration of justice becomes only procedure and the essence of justice is lost.”

As noted, the issue presently before the Court is one of apparent first impression. It centers on the adequacy of the factual recitation during a defendant’s allocution at a prior conviction for purposes of establishing predicate status in the present case and imposing a harsher sentence. Such is distinct from, but related to, the issue in the previous case involving waiver of constitutional rights. Although the Appellate Division, Second Department, cases cited previously are nearly on point, this Court respectfully disagrees and declines to follow same as not controlling.

Thus, defendant, who did not admit using “force”, an essential element under Penal Law 160.10, did not knowingly and voluntarily plead guilty to the violent felony of robbery in the second degree. Surely, defendant did not adopt nor incorporate his adversarial prosecutor’s previous remarks to the Court, which referred to the use of a knife during the robbery. If so adopted, the question is relevantly raised whether defendant was actively or effectively represented by counsel. This Court does not reach, as moot, defendant’s additional contention that that factual allocution as to the lesser included offense of grand larceny in the third degree (Penal Law 155.30) was constitutionally insufficient.

Thus, the Court, under the established First Department, Appellate Division and Court of Appeals precedents, relies on previous cases in determining that the defendant’s prior plea allocution was insufficient to serve as the constitutional basis for a predicate felony sentence, and cannot enhance defendant’s sentence herein. Thus, for the reasons set forth hereinabove, this Court determines, as a matter of fact and law, that defendant sustained his burden of proof under C.P.L. 400.21.

Accordingly, defendant’s C.P.L. 400.21 constitutional challenge is upheld and defendant shall be sentenced as a first felony offender.

Petty crimes like robbery should not be tolerated, as this crime can be done even by minors. Here in Stephen Bilkis and associates, our Bronx County Criminal lawyers handle these crimes with due care. Contact us now and know your rights.

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