People v. Hall , 4 N.Y.S.3d 619 ( 2015 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered:   February 19, 2015               103254
    105943
    ________________________________
    THE PEOPLE OF THE STATE OF
    NEW YORK,
    Respondent,
    v                                     MEMORANDUM AND ORDER
    TYQUAN HALL,
    Appellant.
    ________________________________
    Calendar Date:   January 16, 2015
    Before:   Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ.
    __________
    Alexander W. Bloomstein, Hillsdale, for appellant.
    Joseph Stanzione, District Attorney, Catskill (Danielle D.
    McIntosh of counsel), for respondent.
    __________
    Lahtinen, J.P.
    Appeals (1) from a judgment of the County Court of Greene
    County (Lalor, J.), rendered February 23, 2010, convicting
    defendant upon his plea of guilty of the crime of burglary in the
    first degree, and (2) by permission, from an order of said court
    (Pulver Jr., J.), entered June 28, 2013, which denied defendant's
    motion pursuant to CPL 440.10 to vacate the judgment of
    conviction, without a hearing.
    The underlying facts are set forth in our decision in an
    earlier appeal by one of the several individuals who allegedly
    acted together with defendant in committing various crimes during
    the course of entering a home in the Town of Catskill, Greene
    County (People v Dixon, 93 AD3d 894 [2012]). Defendant and
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    codefendant Melvin Lett Jr. – who was the only one of the four
    not wearing a mask – were charged together in a 26-count
    indictment, and two other individuals – Duane Dixon and Timothy
    Hall Jr. – were also indicted for the same crimes. Lett pleaded
    guilty to burglary in the first degree (count one of the
    indictment) as part of a plea deal in which he, among other
    things, agreed not to testify on behalf of a codefendant should
    any of the other three go to trial. Shortly thereafter, Dixon,
    Timothy Hall and then defendant accepted similar plea bargains,
    with each pleading guilty to one count of burglary in the first
    degree and agreeing not to testify on behalf of any codefendant.
    Defendant's motion to withdraw his plea was denied, and County
    Court (Lalor, J.) sentenced him in accordance with the plea
    agreement to 8½ years in prison together with five years of
    postrelease supervision.1 His CPL 440.10 motion to vacate his
    judgment of conviction was denied without a hearing by County
    Court (Pulver Jr., J.). Defendant appeals from both his judgment
    of conviction and, by permission, the order denying his CPL
    article 440 motion.
    Defendant argues that the first four counts of the
    indictment – charging burglary in the first degree and three
    counts of robbery in the first degree – were jurisdictionally
    defective, and that County Court (Lalor, J.) erred in denying his
    motion to dismiss those counts and in granting the People's
    motion to amend. We are unpersuaded. "While a defendant's
    guilty plea does not waive jurisdictional defects in an
    indictment, an indictment is jurisdictionally defective only if
    the acts alleged to have been performed by the defendant do not
    constitute an actual crime" (People v Brown, 75 AD3d 655, 656
    [2010] [citations omitted]). The first four counts incorporated
    by reference the applicable specific statutory provisions, which
    generally is "'sufficient to apprise . . . defendant of the
    charge[s] and, therefore, render[] the count[s] jurisdictionally
    1
    Under the terms of the plea deals, the recommended prison
    term for each was 10 years unless all four agreed to plead
    guilty, in which event the recommended sentence would be 8½
    years. Defendant was the last to accept the plea arrangement.
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    valid'" (People v Cane, 123 AD3d 1301, 1302 [2014], quoting
    People v Moon, 119 AD3d 1293, 1294 [2014], lv denied 24 NY3d 1004
    [2014]; cf. People v Boula, 106 AD3d 1371, 1372 [2013], lv denied
    21 NY3d 1040 [2013] [holding that such specific statutory
    reference "may be negated . . . by the inclusion of conduct that
    does not constitute the crime charged"]). In addition, the
    People promptly moved to amend the indictment to add the specific
    weapons used to the originally recited list of firearms from the
    statute (see Penal Law §§ 140.30 [4]; 160.15 [4]) and to also add
    that each of the first four counts was an armed felony offense
    (see CPL 200.50 [7] [b]; see also People v Giordano, 274 AD2d
    748, 749 [2000]; People v Coleman, 235 AD2d 928, 929 [1997], lv
    denied 89 NY2d 1033 [1997]). This amendment to the indictment
    did not change the theory of the case or prejudice defendant and,
    accordingly, it was not error to allow the amendment (see People
    v Giordano, 274 AD2d at 749; see also CPL 200.70 [1]; People v
    Cruz, 61 AD3d 1111, 1112 [2009]; People v Latour, 11 AD3d 819,
    820 [2004], lv denied 4 NY3d 800 [2005]).
    Next, defendant contends that his plea was not voluntarily
    made and that it was error to deny his motion to withdraw his
    plea. These contentions rest upon the same provision of the plea
    bargain as was unsuccessfully challenged by his codefendant in
    People v Dixon (93 AD3d at 895-896). Defendant pleaded guilty at
    the same time and under the same conditions as Dixon. He has not
    pointed to any facts in the record up to the time that he
    accepted the plea that would distinguish his case and require a
    different result as to these issues than the one reached in
    People v Dixon (supra). His further argument that his sentence
    was harsh and excessive is precluded by his valid waiver of
    appeal (see id. at 896; People v Richardson, 83 AD3d 1290, 1292
    [2011], lv denied 17 NY3d 821 [2011]). The judgment of
    conviction must thus be affirmed.
    Finally, we turn to defendant's assertion that his CPL
    article 440 motion should not have been denied without a hearing.
    In his motion, defendant urged that the provision of the plea
    agreement precluding a codefendant from testifying – primarily as
    pertained to Lett testifying on behalf of defendant – violated
    his rights to due process and a fair trial. Initially, we
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    reiterate that "we do not encourage the type of plea agreements
    fashioned by the People here" (People v Dixon, 93 AD3d at 896).
    "[D]ue process may be violated when the prosecution's conduct
    deprives a defendant of exculpatory testimony" (People v Sharpe,
    70 AD3d 1184, 1186 [2010], lv denied 14 NY3d 892 [2010]), and
    such conduct could, depending on the circumstances, include
    conditioning "the plea of a codefendant upon his [or her] promise
    to not to testify at [the] defendant's trial and to threaten to
    increase the codefendant's sentence should he [or she] violate
    that condition" (People v Whitfield, 115 AD3d 1181, 1182 [2014],
    lv denied 23 NY3d 1044 [2014]; see People v Turner, 45 AD2d 749,
    749-750 [1974]). Nonetheless, reversal is not required when "the
    proposed [excluded] evidence is not shown to be exculpatory"
    (People v Sharpe, 70 AD3d at 1186), such as when the
    codefendant's allocution acknowledged the veracity of a prior
    statement implicating the defendant (see People v Scanlon, 231
    AD2d 852, 853 [1996]), the codefendant has given materially
    contradictory or inconsistent statements regarding the
    defendant's actions (see People v Sharpe, 70 AD3d at 1186) or it
    is otherwise established that the codefendant's testimony would
    not be exculpatory (see People v Davis, 39 AD3d 873, 874 [2007],
    lv denied 9 NY3d 842 [2007]; People v Warren, 27 AD3d 496, 497-
    498 [2006], lv denied 7 NY3d 796 [2006]). In the context of
    challenging such a plea in a CPL article 440 motion where a
    codefendant has not already made statements indicating the
    defendant's involvement, we have noted that obtaining an
    exculpatory statement from the codefendant or being rebuffed in
    an attempt to do so because of the terms of the plea might give
    rise to an issue as to whether the terms of the plea deprived the
    defendant of due process or a fair trial (see People v Dixon, 93
    AD3d at 896 n 2).
    Here, neither Lett's allocution nor any statement
    attributed to him (or the other codefendants) implicated
    defendant in the crimes and, in fact, at sentencing Lett made a
    rather ambiguous statement regarding the other participants: "I
    pled guilty, all right, but that don't mean lock up everybody you
    think is guilty. I pled guilty because I'm guilty, but I know
    who was with me that night, you understand, and I will save that
    for the future." This statement, which was cryptic and could
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    have been raised on direct appeal, was insufficient alone to
    support defendant's challenge to the plea agreement. However, in
    his CPL article 440 motion, defendant included two affidavits
    from Lett. In the first affidavit, Lett explained in some detail
    how defendant's cell phone (apparently a key piece of evidence)
    ended up at the crime scene in that they had been together
    earlier in the day and defendant accidentally left it in Lett's
    vehicle. Significantly, in the second affidavit, Lett stated
    that he would not provide further details because he believed
    that, under his plea agreement, his sentence of 8½ years could be
    revoked and replaced with a sentence of up to 25 years if he
    testified on behalf of defendant.2 Under the narrow
    circumstances here, in which no codefendant implicated defendant,
    a codefendant purported to provide an innocent explanation for
    one piece of evidence implicating defendant, that same
    codefendant stated under oath that he believed he was constrained
    by his plea (and still under threat of a much longer prison
    sentence) from providing any further information, and that
    codefendant's subjective belief was not wholly unfounded in light
    of statements by County Court and the People at the time of his
    plea, we are persuaded that defendant should receive a hearing on
    his motion (see People v Dixon, 93 AD3d at 896 n 2). At the
    hearing, he will have "the burden of proving by a preponderance
    of the evidence every essential fact required to support his
    motion" (People v Lackey, 48 AD3d 982, 982-983 [2008], lv denied
    2
    The People provide no authority for revoking a sentence
    that had been imposed years earlier and partially served, and
    replacing it with a longer one because a codefendant testifies on
    behalf of a defendant. In the typical conditional sentence
    situation, the terms or conditions must be satisfied during a
    time of adjournment before sentencing is pronounced (see People v
    Avery, 85 NY2d 503, 507 [1995] [examples of conditional sentences
    cited therein]). Once a sentence is imposed, it generally may
    not be changed (see CPL 430.10). Nonetheless, in light of the
    colloquy at the time of Lett's plea, we cannot say that his
    concern is totally unfounded, and he did not receive subsequent
    assurance that he is not now subject to a more severe sentence if
    he testifies (cf. People v Whitfield, 115 AD3d at 1183).
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    10 NY3d 936 [2008]).3
    Egan Jr., Lynch and Devine, JJ., concur.
    ORDERED that the judgment is affirmed.
    ORDERED that the order is reversed, on the law, and matter
    remitted to the County Court of Greene County for further
    proceedings not inconsistent with this Court's decision.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    3
    We note that defendant has served six years of his 8½-
    year prison sentence and, if successful in having his plea
    vacated, he risks potential exposure to a longer prison sentence
    if ultimately found guilty. If it has not already been done,
    such fact should be communicated to defendant by his counsel (see
    New York State Office of Indigent Legal Services Appellate
    Standards and Best Practices, at 8, https://www.ils.ny.gov/files/
    Appellate%20Standards%20Final%20010515.pdf [accessed January 24,
    2015]).
    

Document Info

Docket Number: 103254-105943

Citation Numbers: 125 A.D.3d 1095, 4 N.Y.S.3d 619

Filed Date: 2/19/2015

Precedential Status: Precedential

Modified Date: 1/12/2023