People v. Lioto

174 Misc. 2d 351, 664 N.Y.S.2d 414, 1997 N.Y. Misc. LEXIS 471
CourtNew York County Courts
DecidedSeptember 26, 1997
StatusPublished

This text of 174 Misc. 2d 351 (People v. Lioto) is published on Counsel Stack Legal Research, covering New York County Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Lioto, 174 Misc. 2d 351, 664 N.Y.S.2d 414, 1997 N.Y. Misc. LEXIS 471 (N.Y. Super. Ct. 1997).

Opinion

OPINION OF THE COURT

Joseph E. Fahey, J.

On April 12, 1995, the defendant entered a plea of guilty to attempted robbery in the first degree in violation of sections 110.00 and 160.15 of the Penal Law and burglary in the third degree in violation of section 140.20 of the Penal Law before the Honorable Patrick J. Cunningham in this court. At the [353]*353time he entered these guilty pleas, the court agreed to sentence him to an indeterminate term of imprisonment of three to six years and two to four years to run concurrently. Over the objection of the Assistant District Attorney, the court released the defendant in order to allow him to get married and adjourned sentencing until May 24, 1995. At the time of the plea, the court warned him pursuant to People v Parker (172 AD2d 697 [2d Dept 1991]) that he would face an enhanced sentence should he fail to appear on that date. Thereafter, the defendant did not appear and was ultimately arrested as a fugitive by the United States Marshall Service in Albuquerque, New Mexico, on April 9, 1997. He was returned to this court on May 15, 1997. The People have expressed their intention to seek enhanced sentences as a result of the defendant’s flight and failure to appear. The defendant opposes this, contending that the Court gave the defendant an inadequate warning concerning the consequences that would result, relying upon Innes v Dalsheim (864 F2d 974 [2d Cir 1988]), People v Rosa (194 AD2d 755 [2d Dept 1993]) and People v Wimple (198 AD2d 464). The People rely on People v Figgins (87 NY2d 840) and People v Rumlin (209 AD2d 1051 [4th Dept 1994]) for authority to seek a harsher sentence.

The court has reviewed the Second Circuit holding in Innes v Dalsheim (supra) and finds it neither persuasive nor controlling. In that case, the appellant was granted habeas corpus relief from an enhanced sentence imposed after he breached his plea agreement after denying him the right to withdraw his guilty plea. In holding that the denial of the motion to withdraw the guilty plea violated Innes’ right to due process, the Second Circuit relied upon Santobello v New York (404 US 257 [1971]). There, the Supreme Court held that: "[T]he adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” (Supra, at 262.)

In applying Santobello (supra), the Second Circuit determined that although the State court had informed the defendant that a breach of the plea agreement could result in an enhanced sentence, it did not specifically inform him he could not withdraw his guilty plea and absent that express admonition, it is unclear the defendant knew he was giving up his right to [354]*354trial faced with the prospect of a more serious sentence being imposed. The Court determined that this lack of clarity in the warning given to the defendant required that his plea be vacated and he be afforded the opportunity to proceed to trial. While this court is somewhat skeptical of the reasoning in Innes (supra) in that it fails to impose any concomitant obligation upon the defendant to appear for sentencing or refrain from committing new crimes — minimal burdens at best — the instant plea colloquy suffers from no such lack of clarity. In agreeing to release the defendant over the District Attorney’s objection in order to allow him to get married before sentencing, Judge Cunningham warned him:

"There has to be a penalty, Kevin, if you get arrested for something, you know, some arrest while you’re out or any further trouble or if you don’t show up for sentence, then I’m going to just sentence you at that point to whatever is appropriate. And it won’t be a minimum sentence. Do you want to take that chance?
"(The Defendant). Yes sir, I’ll be here.”

Clearly, the defendant was on notice that if he breached the agreement to appear for sentencing or became involved in new criminal activity he would face an enhanced sentence and that standing trial would not be an option. As noted above, the defendant did not appear for sentencing, having fled the jurisdiction and was returned by the United States Marshall Service 25 months later.

The defendant further contends that his plea of guilty must be vacated because he suffered from mental illness at the time of his plea and had an inadequate understanding of his constitutional rights. Additionally, he claims he was the victim of ineffective assistance of counsel who allegedly provided incorrect advice concerning the sentencing risk following a guilty verdict after' trial along with failure to raise his unfitness to proceed pursuant to CPL article 730. Finally, he claims his plea was coerced during the plea allocution thereby inducing an involuntary admission from him.

In support of his claim that mental illness hampered his understanding of his constitutional rights at the time his plea was entered, the defendant relies upon a report of a mental competency examination ordered by this court on July 10, 1997, some 28 months after the plea was entered. During an interview with Dr. Marilyn Ward, who found him fit to proceed, the defendant appeared to exhibit some confusion about the role of a Grand Jury and a trial jury, but otherwise understood [355]*355the concept of a plea bargain, the role of his attorney, his available defenses and other parties to court proceedings. Moreover, this appears to be the first occasion in which the defendant contends his ability to understand court proceedings was impaired. This claim is belied by the plea minutes of April 12, 1995 in which the defendant expressly acknowledges his right to a trial by jury on each indictment and his renunciation of the same in exchange for the court’s sentencing commitment.

The defendant’s claim that he was the victim of ineffective assistance of counsel because he was misadvised of his potential sentencing exposure following unsuccessful trials and the failure to- raise his fitness to proceed are likewise without merit. In support of his claim that he was misadvised about his potential sentencing exposure, the defendant baldly asserts that he was told by his lawyer that he faced trial on a B felony rather than a C felony, and this misadvice is corroborated by his statement at the time of his plea: 'T would rather do the 3 to 6 than 12-1/2 to 25 Your Honor.” (Proceedings of Apr. 12, 1995, at 3.)

What is overlooked, however, is that the defendant entered pleas of guilty to two different indictments, each of which carried maximum sentences of 71/2 to 15 years and 31/2 to 7 years respectively, which could have resulted in consecutive sentences. Additionally, his plea satisfied an unindicted robbery in the second degree, which carried a maximum sentence of 71/2 to 15 years and a petit larceny charge, which carried an additional year. Thus, his maximum potential exposure was 181/2 years to 33 years if he was unsuccessful at each trial. Moreover, after initially expressing his belief that his maximum sentencing exposure was 121/2 to 25 years, the defendant, two lines later, told the court: "I would rather do the 3 to 6 than 6 to 12” (id.,

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Related

Santobello v. New York
404 U.S. 257 (Supreme Court, 1971)
People v. Ford
657 N.E.2d 265 (New York Court of Appeals, 1995)
People v. Figgins
661 N.E.2d 156 (New York Court of Appeals, 1995)
People v. Baldi
429 N.E.2d 400 (New York Court of Appeals, 1981)
People v. Bryant
66 A.D.2d 786 (Appellate Division of the Supreme Court of New York, 1978)
People v. Christian
139 A.D.2d 896 (Appellate Division of the Supreme Court of New York, 1988)
People v. Goldfadden
145 A.D.2d 959 (Appellate Division of the Supreme Court of New York, 1988)
People v. Parker
172 A.D.2d 697 (Appellate Division of the Supreme Court of New York, 1991)
People v. Boodhoo
191 A.D.2d 448 (Appellate Division of the Supreme Court of New York, 1993)
People v. Rosa
194 A.D.2d 755 (Appellate Division of the Supreme Court of New York, 1993)
People v. Wimple
198 A.D.2d 464 (Appellate Division of the Supreme Court of New York, 1993)
People v. Rumlin
209 A.D.2d 1051 (Appellate Division of the Supreme Court of New York, 1994)
People v. Gonzales
231 A.D.2d 939 (Appellate Division of the Supreme Court of New York, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
174 Misc. 2d 351, 664 N.Y.S.2d 414, 1997 N.Y. Misc. LEXIS 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lioto-nycountyct-1997.