Defendant appeals from a judgment of the Supreme Court, New York County (Budd G. Goodman, J.), rendered November 23, 2005, convicting him, upon his plea of guilty, of burglary in the first degree and attempted rape in the first degree, and sentencing him, as a second felony offender.
The opinion of the court was delivered by: Catterson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
David Friedman, J.P., Eugene Nardelli, James M. Catterson, Leland G. DeGrasse, JJ.
This appeal arises out of a judgment of conviction upon the defendant's plea of guilty to certain felony charges related to an incident on January 15, 2005. On appeal, the defendant claims that he should be permitted to withdraw his guilty plea and that his conviction should be vacated on the grounds, inter alia, that it was the product of undue coercion by the court.
Although the defendant neither sought to withdraw the plea nor moved to vacate the judgment, as a matter of discretion in the interest of justice, for the reasons set forth below, we review the claim and allow the defendant's withdrawal of his guilty plea and hereby vacate his conviction and remand to the Supreme Court for further proceedings.
The defendant was charged with burglary in the first degree, attempted rape in the first degree, four counts of sexual abuse in the first degree, and assault in the second degree. He was arraigned on the indictment on February 24, 2005, and pleaded not guilty. At that time, the People offered a plea involving a sentence of 20 years. The defendant filed an omnibus motion which was considered by the court on July 19, 2005. The court granted a Huntley hearing and adjourned the case until September 14, 2005 for hearing and trial.
On September 14, 2005, the People answered not ready, and requested an adjournment until September 26, 2005 to secure the testimony of an eyewitness. The People also indicated that they would accept a plea of 15 years if defendant was willing to plead guilty on that day.
The judge responded by advising the defendant that after that day, "there would be no further discussions ever [...] I will never repeat it again nor will the District Attorney nor will anybody else. He is looking at obviously a lot more time." The defendant indicated that he did not understand the plea offer and wanted time to consider it. The judge adjourned the case to shortly before the hearing and trial scheduled for September 26 in order to give the defendant time to decide whether or not to accept the plea offer. The judge further warned the defendant that he would not entertain any pleas on September 26 and stated that if the defendant wanted a plea on that day, he was not going to get it.
On September 26, 2005, the People again answered not ready since their witness was out of the country and would not be available to testify until October 27th. When the prosecutor requested that the time be excluded, the judge did not rule on the request but instead told defense counsel that if counsel tried to file a speedy trial motion on October 27, he would be "very upset." On October 27, defense counsel filed an order to show cause seeking the defendant's release. The judge responded that the case was going to be marked ready for trial the following day. Defense counsel also advised the court that the defendant was filing a CPL 30.30 speedy trial motion pro se and that defense counsel was filing a motion in support. The judge denied all motions and adjourned the case for trial.
On Friday, October 28, during the defendant's Sandoval hearing, the court stated: "[L]et me start off by saying on the record that it is my hope that Mr. Fisher gets a fair trial because frankly I believe in giving everybody a fair trial and I also believe that when somebody commits a crime of this nature that if they are convicted that they should get the maximum sentence allowable by law and so the last thing in the world I want to create is reversible error and I'm very careful about that and I have a record of getting reversed very few times so we're going to give him a fair trial. If he's acquitted, he is acquitted but if he's convicted he will be a very old man when he gets out of jail because whatever is the maximum sentence allowable by law he will get it" (emphasis added).
The judge observed that the sentence for a predicate felony offender was 8 to 25 years, but that the defendant was "guarantee[d]" to get 20 to 25 years. The judge announced that the trial would proceed, and he would not entertain any further plea bargains, and that if convicted, the court would "deal with it" by giving defendant "what sentence [he felt] was appropriate." Despite these declarations, on Monday, October 31, 2005, the judge agreed to accept a guilty plea to first degree burglary and first degree attempted rape in return for a prison sentence of 17 years followed by 5 years of post-release supervision. When the defendant returned to court on November 23, 2005, he was sentenced according to the terms of the plea agreement.
Upon conviction, the defendant executed a waiver of his right to appeal which specifically did not apply to 1) a constitutional speedy trial claim, 2) a challenge to the legality of the sentence promised by the judge, 3) a challenge to defendant's competency to stand trial, and 4) the voluntariness of his waiver of his right to appeal. Unquestionably, the defendant should have preserved a claim of coercion by the court by requesting to withdraw his guilty plea pursuant to CPL ...