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The People &C v. Hans Alexander

May 3, 2012

THE PEOPLE &C., RESPONDENT,
v.
HANS ALEXANDER, APPELLANT.



The opinion of the court was delivered by: Read, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Before defendant Hans Alexander pleaded guilty, the trial judge observed to defense counsel that she would accept the plea "on the condition" that defendant withdrew "any and all motions that [were] outstanding," which included a recently filed pro se constitutional speedy trial motion, and waive the right to appeal. During allocution, the judge twice asked defendant if he "under[stood]" that by entering into the guilty plea, all his "outstanding writs and motions" were "being withdrawn," and he responded that he did. We conclude that the judge's statements, considered in context, do not go against our decisions in People v White (32 NY2d 393 [1973]), People v Blakley (34 NY2d 311 [1974]) and People v Sutton (decided with People v Callahan, 80 NY2d 273 [1992]). Accordingly, we affirm the judgment of conviction and sentence in this case.

I.

By indictment filed on December 8, 2006, the grand jury charged defendant and a co-defendant, acting in concert, with third-degree criminal sale of a controlled substance (Penal Law § 220.39 [1]) and criminal sale of a controlled substance in or near school grounds (Penal Law § 220.44 [2]); while in jail awaiting trial, defendant filed numerous pro se motions and habeas corpus petitions. When defendant, his co-defendant and the People appeared before Supreme Court on January 11, 2008, the judge informed them that although they were all "ready for trial" that day, she had "got[ten] word . . . literally just about two hours ago, that [defendant had] filed another writ with the [Appellate Division], which [had] been granted." Defendant claimed in this particular petition that his indictment was defective because the People neglected to instruct the grand jury on the agency defense (see People v Lam Lek Chong, 45 NY2d 64, 73 [1978] ["In this State it has long been held that one who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics" (internal quotation marks omitted)]; People v Valles, 62 NY2d 36 [1984] [requiring prosecutor to charge exculpatory defenses to the grand jury]).*fn1

The trial judge explained that because "that writ [was] now back . . . before [her] and [would] have to be decided[,] the People [would] have to be given a reasonable opportunity to respond," which meant that the trial had to be "put off." In light of her trial schedule and a pending move of the court's operations to a new building, she suggested an adjourned date of March 4, 2008, a seven-week delay. Defendant's attorney then informed the judge that his client had asked him "to make further inquiry" regarding a new offer conveyed by the prosecutor that day for a determinate sentence of 11/2 years in prison, followed by one year of postrelease supervision, in exchange for a plea to a felony. He remarked that "[m]y client at first indicated that he wanted to think about it. And shortly after the Court . . . indicated what the adjourned date was going to be, he . . . asked me to make further inquiries with respect to whether or not -- may I have a moment?"

The judge answered "Yes," and a brief off-the-record discussion ensued at the bench.

The trial judge, addressing defendant's attorney directly, then stated as follows:

"I just want you to know that I will accept the plea, obviously, on the condition that [defendant] is withdrawing any and all motions that are outstanding before the Court and he's waiving his right to appeal."

The outstanding motions included a pro se speedy trial motion filed by defendant on December 29, 2007, and marked received in the judge's trial part on January 10, 2008, the day before the scheduled trial.*fn2 In this motion, defendant alleged a violation of his speedy trial rights under the federal and state constitutions, CPL 30.20 (1) (specifying that "[a]fter a criminal action is commenced, the defendant is entitled to a speedy trial"]) and CPL 30.30 (1) (a) (with exceptions, mandating dismissal where the People are not ready for trial within six months after commencement of a criminal action wherein the defendant is accused of at least one felony).*fn3

Defendant's attorney next informed the judge that his client was "under the impression that he [could] be released from this courtroom," rather than "go Upstate." After some discussion, the judge clarified that defendant, in fact, would have to "go Upstate" -- i.e., enter the State penal system to have the Department of Correctional Services (now the Department of Corrections and Community Supervision) calculate his jail time credit before his release. Upon hearing that apparently unwelcome news, defendant instructed his counsel to let the judge know he was "not interested" in entering a guilty plea.

After a pause in the proceedings, the trial judge and co-defendant's counsel had some discussion. A further pause ensued, and then defendant's attorney told the judge that "after having a number of conversations with [defendant] and also after having had an opportunity to review the writs that have been filed with the Court as well as the motions filed with the Court and the hearing minutes and so on, at this time [defendant] authorizes me to enter a plea of guilty on his behalf in full satisfaction of the indictment that is currently before the Court, to Penal Law Section 220.31, which is criminal sale of a controlled substance in the fifth degree, with the understanding that [he] will be receiving credit for all the time that he has currently served while in jail; with the further understanding that he will also be required to waive his right to appeal.

"And in addition to waiving his right to appeal, it is also with the understanding that he will move to withdraw any outstanding writs or any outstanding motions that he has filed, that I have adopted in the past."

The trial judge pointed out to defendant that he was being offered "the very minimum" sentence possible in light of his predicate felony status, and he acknowledged that he understood this. The judge added, "And you understand by taking this plea, all of your outstanding writs and motions that you have are being withdrawn; do you understand that?" to which defendant replied "Withdrawn."

Defendant then acknowledged that he had been allowed enough time to discuss the plea offer with his attorney, with whose representation he was satisfied; that he understood he would be pleading to a D felony, fifth-degree criminal sale of a controlled substance, for the promised sentence of 11/2 years in prison plus one year of postrelease supervision; and that "by entering into this plea, all prior writs and motions that are outstanding [were] being withdrawn." He further confirmed that he understood that he was giving up his rights to a jury trial, to have the People prove his guilt beyond a reasonable doubt, to confront witnesses and to remain silent.

Defendant next admitted that, on November 18, 2006, acting with another, he sold cocaine to an undercover police officer. He averred that no one had forced him to plead guilty; that he was, in fact, guilty; and that the only promise made to him was as to his sentence. Defendant then signed a written waiver of his right to appeal and assured the court that he understood that by signing the waiver, he was giving up "certain legal rights . . . spelled out" in that document.*fn4 The judge adjudicated defendant a predicate felony offender and adjourned the case until January 30, 2008 for sentencing.

On January 17, 2008, defendant filed a pro se motion pursuant to CPL 220.60 (3), seeking an order permitting him to withdraw his guilty plea and reinstating the indictment. He asserted numerous reasons to support a claim that his plea was not knowing and voluntary, including ineffective assistance of counsel and that, under Blakley, "the nature of the speedy trial guarantee render[s] a waiver of such a claim or the withdrawal inherently coercive in a plea bargaining situation, so that a plea conditioned on a waiver or withdrawal must be vacated." In an affirmation in opposition served on February 28, 2008, the People, quoting extensively from the plea hearing's minutes, argued generally that the record contravened defendant's claims. In a decision and order filed on April 15, 2008, the new judge assigned to the matter ordered a hearing in light of the "[f]actual issues . . . raised by the opposing affirmations."

The hearing was held over four days, July 16, September 12, October 8 and October 24, 2008. Defendant called as a witness his attorney at the time he pleaded guilty, a 49-year-old criminal defense lawyer who had been practicing since 1986. The attorney, who began representing defendant in September 2007, testified that he had a "number of conversations" with defendant regarding his pro se motions; and that he had warned him about the risks associated with presenting the "very dangerous" agency defense at trial; namely, as a consequence, defendant's numerous prior convictions for drug offenses would become relevant and hence admissible. They also discussed the People's original plea recommendation of 31/2 years in prison in exchange for pleading guilty to third-degree criminal sale of a controlled substance, which defendant rejected out of hand. The attorney's description of what happened during the court appearance on the afternoon of January 11, 2008 was consistent with the plea hearing's minutes. He testified that although he advised defendant that, in his opinion, the People had made a "good offer" because defendant "wouldn't have to spend much more time in jail," he emphasized that "the decision would have to be" defendant's, and he "was ready to go forward to trial."

The attorney also related what happened in court on January 30, 2008 as defendant was about to be sentenced:

"[W]hen we appeared in court, . . . [defendant] then indicated to the judge, after [she] . . . asked him a question concerning what he had told the Department of Probation as to his guilty plea, . . . ...


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