People v. Brundage

83 A.D.2d 579, 441 N.Y.S.2d 120, 1981 N.Y. App. Div. LEXIS 14876

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1981
• Status: Published

Opinions

Appeal by defendant from a judgment of the Supreme Court, Westchester County (Rubin, J.), rendered October 16,1979, convicting him of robbery in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial of a motion to withdraw his guilty plea. Judgment reversed, on the law, motion granted, guilty plea vacated, defendant’s plea of not guilty reinstated, and matter remitted to the Supreme Court, Westchester County, for further proceedings. Defendant was indicted together with Ronald Harris, inter alia, for the crime of robbery in the second degree, it being alleged that on May 10,1979, each aiding and abetting the other and each being actually present, did forcibly steal certain personal property from Leslie Benton. On August 2, 1979, in the course of a change of plea proceeding, the Assistant District Attorney addressed the defendant and called upon him to admit his guilt by reading the charge from the indictment: “me. lacava [Assistant District Attorney], Mr. Brundage [defendant], do you admit that in the City of Yonkers, County of Westchester, and State of New York, on or about May 10,1979, that you, together with your co-defendant, Mr. Ronnie Harris, each of you aiding and abetting and acting in concert and each of you being actually present, did forcibly steal property from one Leslie Benton, that is jewelry and current monies of the United States of America?” In response, the defendant declined to admit the codefendant’s participation in the alleged crime, stating, “I could say what I did, I can’t say what Ronnie did” (emphasis added), and the following colloquy then ensued: “me. lacava: You have to admit the facts, you have to admit the facts that I have stated, miss popkin [defendant’s attorney]: Your Honor, he has to admit the crime with which he is charged. * * * the court: Was Ronnie with you at the time? the defendant: I can’t say that either.” (Emphasis added.) The Assistant District Attorney stated that the indictment charged that the defendant and Harris committed the crime together and that it was unacceptable to him to accept the plea in any other manner. In response the court ruled that the plea must be taken in the language of the indictment or not at all. The following ensued: “the court: The District Attorney wants a plea according to the indictment, and I agree with him. I am not going to accept the plea other than what the indictment says. If he does not accept it, then in that event we won’t take the plea, miss popkin: May I state for the record that Mr. Brundage is ready and willing to admit under oath all of the elements of the crime of robbery in the second degree including the presence of another person, mr. lacava: That is not acceptable to the People, your Honor. We would move for trial, miss popkin: Your Honor, may I point out that the defendant has a right to plead to an indictment at any time, the court: He is not pleading to the whole indictment. miss popkin: Your Honor, he offers to plead to the entire indictment and also the charges of grand larceny and petty larceny, the court: He has to plead to the indictment as charged. He is charged with the name of an individual with which he refuses to agree that he was with, miss popkin: No, your Honor, that is a matter of evidence and not a matter of the charge, the court: I will not accept this plea at this time. All right, we will adjourn it for another date.” (Emphasis added.) After a short recess, the matter was called again, at which time the Assistant District Attorney called upon the defendant to admit the commission of the crime in the words of the indictment and the defendant then responded, “Yes” and when the Assistant District Attorney asked “Do you admit to those facts”, he again answered “Yes.” It is an essential substantive element of the crime of robbery in the second degree, under subdivision 1 of section 160.10 of the Penal Law, as charged here, that it be established that the defendant forcibly stole property when “[h]e [was] aided by another person actually present”. The plea of guilty, here, is defective for the reason that, in the defendant’s allocution, not only did he, by declining to admit the offense in the words of the indictment, make known to the court that its language did not apply to him, but that if his response was not so limited, “I could say what I did,” and thereafter explaining that “I can’t say nothing about what Ronnie did”, he specifically eliminated Harris as an aide in the crime. His disclaimer of any knowledge that Harris participated in the commission of the offense, coupled with a total failure to admit the presence of any other individual, renders the plea insufficient to spell out the crime of robbery in the second degree and is therefore a nullity. Furthermore, under the circumstances of this case, inquiry by the court beyond the quest for an affirmative response to the strictured words of the indictment might well have developed facts indicating that the defendant was not a participant in any crime whatsoever. Apart from the foregoing considerations, we are again called upon to note that although no specific catechism is required for the taking of a defendant’s plea of guilty (People v Nixon, 21 NY2d 338, 353), it was, under the circumstances of this case, most inappropriate for the court to insist that the plea not be accepted unless the defendant responded in the affirmative to a recital of the allegations of this indictment after he had already indicated to the court by his responses that there was no substantive basis for a plea of guilty to the crime of robbery in the second degree. When this difficulty became apparent, it was incumbent upon the court to permit the defendant to describe in his own words how the crime was committed and not to restrict the proceedings to a rereading of the words of the indictment by the Assistant District Attorney. This procedure is mandated by the rule expressed in People v Serrano (15 NY2d 304, 308) as follows: “But, where, as is the usual case today, the trial court, before accepting the plea of guilty, properly inquires of the defendant as to the circumstances and details of the crime to which he is admitting his guilt, the mere mouthing of the word ‘guilty’ may not be relied upon to establish all the elements of that crime. In such case, the requisite elements should appear from the defendant’s own recital and, if the circumstances of the commission of the crime as related by the defendant do not clearly spell out the crime to which the plea is offered, then, the court should not proceed, without further inquiry, to accept the guilty plea as a valid one.” In People v McDougle (67 AD2d 989), this court, in vacating a plea of guilty where the County Court similarly failed to take the necessary precaution when the defendant’s allocution did not contain an essential substantive element of the crime, held as follows (pp 989-990): “It is well established that before accepting a plea of guilty, the court should inquire of the defendant as to the circumstances and details of the crime to which he is admitting his guilt. The mere mouthing of the word ‘guilty’ may not be relied upon to establish all the elements of the crime. The requisite elements should appear from the defendants own recital and, if the circumstances of the commission of the crime as related by the defendant do not clearly spell out the crime to which the plea is offered, then the court should not proceed, without further inquiry, to accept the guilty plea as a valid one. Of course, once advised that his version of the crime is not consistent with the charge to which he is pleading, a defendant might still wish to plead guilty to avoid the risk of conviction upon a trial of the more serious crimes charged in the indictment, and such a plea could be accepted by the court. The fact remains, however) that, before accepting a plea of guilty where the defendant’s story does not square with the crime to which he is pleading, the court should take all precautions to assure that the defendant is aware of what he is doing (People v Cullen, 57 AD2d 903, 904; People v Stone, 54 AD2d 918, 919). It should also be noted that on June 22 the court likewise failed to make further inquiry when defendant made responses which indicated that essential elements of the crime of robbery were lacking in his version of the occurrence. Thus, on September 20 such inadequacy of June 22 was not only not rectified but was compounded.” Error in the instant matter was further compounded by the proceedings which thereafter ensued. When the defendant appeared for sentence on September 10,1979 the court declined to impose sentence because of defendant’s protestations of innocence contained in the presentence report with which the court was furnished. At this point the Judge addressed the defendant and, referring to the report, said: “the court: Yes, there is a statement in the pre-sentencing report, Mr. Brundage, to the effect that although you were present at the time of this robbery, that you have nothing to do with this robbery. However, the facts in the report show that immediately after the robbery you were found in the premises wearing some of the jewelry that was taken.” The presentence report, to which reference was made, contained the defendant’s assertion that he had been residing with the complainant for several weeks prior to the alleged robbery; that he had returned to the apartment with the codefendant after having been “high on reefer”; and that, while there, he entered the bedroom and “tried on” some of his jewelry and then fell alseep on the bedroom couch where he was found by the police. He denied having seen the codefendant tie up the complainant or assault him. The defendant contended that he “didn’t do nothing.” The presentence report also contains a statement attributed to the complainant in which he said that when the police entered the apartment, the defendant was found there alseep on the bedroom couch wearing two of his silver rings and a gold chain and that he had allowed him to take up residence with him on occasion during the past couple of weeks. When the matter was further pursued by the court., the following colloquy took place with the matter thereafter being adjourned to September 17, 1979: “the court: You mean that you are innocent? the defendant: Yes. the court: All right. The defendant still says he is innocent. I will hold a hearing, miss popkin: Your Honor, for the record, I have advised Mr. Brundage not to withdraw his plea. I do not believe he wishes to withdraw his plea, and I do not believe it would be in his best interest to withdraw his plea, so I will not advise him to do so. the court: You are his attorney, so you have got to do what he wants you to do. You have said for the record that you don’t think it’s in his best interest, but he thinks it is. The Court will order you to bring on a motion to withdraw his plea, and I will set it down for a hearing, miss popkin: I will restate what I understand Mr. Brundage to be saying, my understanding may be imperfect, but I understood him to say that he does not wish to withdraw his statement, that he is innocent, and I did not understand him to say that he wishes to withdraw his plea. If the Court wishes to adjourn this matter so I could discuss it with him further — the court: All right, we will put it over.” In the face of the defendant’s protestations of innocence his attorney was protesting his guilt. The court accommodated counsel’s request to adjourn the matter to “discuss it with him further” by commenting that “by that time you ought to be able to understand the situation.” When the matter came on again on September 17, 1979 the defendant continued to profess his innocence as evidenced by the following portion of the record from which it clearly appears that the court again declared its awareness of the difficulty presented by the defendant’s repeated claim of innocence which bestirred the court to order the bringing on of a motion to test the validity of the plea, “the court: What do you want to do this morning? The Court is prepared to carry out the promise that I made here. Does the defendant wish to go ahead on the sentencing this morning? the defendant: No, the court: What do you want to do this morning? the defendant: Take my plea back, the court: I will not grant you that permission; There is an inconsistent statement in the pre-sentencing report. What I will do, I will hold a hearing. Then I will allow counsel to bring on a written motion to determine whether the Court should permit him to withdraw the plea. All right, I will withdraw the matter. Put the case over to October 3 to give you an opportunity to bring on your motion.” (Emphasis added.) The defendant’s repeated claims of innocence when considered in the light of the complainant’s statement that the defendant had taken up residence with him, coupled with his further observation that the defendant was found by the police asleep on a couch in the bedroom wearing his jewelry, could provide an arguable defense from which a jury could find that, apart from whatever the codefendant’s conduct suggests, defendant, while enjoying the comforts and hospitality of the complainant’s home as a house guest, had, as set forth in the probation report, “tried on” some of the jewelry, rather than that beyond a reasonable doubt he was a perpetrator of a robbery. Under the circumstances presented, it was indeed apparent to the court that an arguable defense that should be resolved at trial might exist, and for that reason sentence was not then imposed. An intoxicated person wearing his roommate’s jewelry while lying asleep on the bedroom couch in a place where he resides must be viewed as an unlikely “robber” in any event. His quiet repose was interrupted by the presence of the police in the apartment which defendant shared with the complainant. Hardly conduct to be expected of one who just committed a violent crime. On September 10,1979, after defendant’s attorney stated that he had advised the defendant not to withdraw his plea since she did “not believe it would be in his best interest” to do so, the court ordered counsel “to bring on a motion to withdraw his plea.” This order was repeated bn September 17, 1979, whereupon a motion was brought for such relief by defendant’s counsel. This application was made solely upon the affidavit of defendant’s attorney who, as above noted, resisted making such motion until ordered to do so by the court, and in a supplementary affirmation by counsel in which she stated, inter alia: “Mr. Brundage appeared before Hon. Isaac Rubin on September 10,1979 and professed innocence. Judge Rubin directed counsel to move to withdraw the plea. Counsel (myself) declined to so move. The matter was adjourned to September 17, 1979. On that date Mr. Brundage stated on the record that he wished ‘to take my plea back’, and on that basis, the instant Order was brought.” It is a fundamental principle of law as expressed in People v Dixon (29 NY2d 55, 56) that a motion to withdraw a plea requires an affidavit by the defendant setting forth factual matter supporting his claims of innocence. Under the circumstances herein, such an affidavit submitted to a jury would have provided a basis for at least an arguable defense. The failure to present an affidavit by the defendant constituted a significant and crucial omission. The motion was denied by order dated October 10, 1979, which is the subject matter of this appeal. From this record before us, it is clearly established that the defendant and his counsel were acting at cross purposes from the inception of these plea taking proceedings. No matter how well motivated counsel may be in recommending a plea of guilty, the ultimate decision to so plead must be made by the defendant himself. In People v Wilson (15 NY2d 634, 635) the court, in remanding the matter to the County Court on the issue of defendant’s mental and physical condition at the time of the plea where a similar conflict existed between a defendant and his counsel, held that such a difference of opinion between attorney and client over a motion to withdraw a plea required “the court to take notice of the extent to which defendant was then effectively represented by counsel”. (See, also, People v Rozzell, 20 NY2d 712.) On this record it is manifest that the judgment of conviction should be reversed, the motion granted and the defendant’s guilty plea vacated for the reason that the plea was substantively defective, and further because the defendant was deprived of the effective assistance of counsel from the outset, more particularly at that point in the proceedings when he finally gave an allocution which satisfied the court, the District Attorney and his own counsel. The matter is therefore remanded to Criminal Term for further proceedings. Gibbons, Margett, and O’Connor, JJ., concur.