Opinion
December 16, 1997
Appeal from the Supreme Court, New York County (Murray Mogel, J., at hearing; Harold Tompkins, J., at plea and sentence).
Defendant was charged with criminal possession of a controlled substance in the third and seventh degrees. After failing to make a court appearance in connection with that indictment, he was indicted for bail jumping in the first degree. The two indictments were subsequently consolidated and a hearing to suppress physical evidence was held. Defendant's motion to suppress was denied, and, on the day jury selection was to begin, he pled guilty as indicated above to cover all charges. On this appeal, he contests the denial of his suppression motion, the denial of his application to retest at State expense the drugs recovered and the denial of his motion to withdraw his plea.
With respect to the suppression issue, we find that the hearing court properly denied defendant's motion to suppress the drugs recovered at the precinct during a search following a lawful arrest. In addition, having pleaded guilty, defendant waived his right to contest the motion court's refusal to order the retesting of the drugs at State expense at a cost far in excess of that permitted by statute ( see, People v. Taylor, 65 N.Y.2d 1, 5).
We find, however, that defendant's motion to withdraw his guilty plea should have been granted. On April 10th, the date on which the plea was accepted, the parties appeared for the first time before the court to which they had been sent for trial. That court inquired as to the plea offer previously made to defendant, whereupon the prosecutor set forth the terms of the offer on the record. In response to the court's subsequent inquiry, the prosecutor stated that the minimum sentence available on a plea to the indictment would be consecutive terms of from 4 1/2 to 9 years on the drug count and 2 to 4 years on the bail jumping count.
At that point, the court explained that, as it was newly assigned to the criminal term in New York County, it wanted to inform the parties of the following:
"It's my policy that should a defendant who is a predicate felon on a drug case go to trial and if that defendant is found guilty by the jury, that it is my policy to sentence the defendant to the high end of the sentencing chart which would be twelve-and-a half to twenty-five."
"That has been, and barring any unforeseen circumstances, will be my policy, subject, of course, to mitigating circumstances that might develop during the trial or in the probation report. And I think it's important that the defendant be aware of that policy. I'm not making the statement to suggest that a defendant not go to trial and exercise his or her constitutional rights. I'm just talking about sentencing guidelines." The court then asked how long the offer would be available. The prosecutor replied that the offer would remain open only until he left the courtroom that afternoon, as jury selection was to commence the following morning.
After conferring with his attorney, defendant then pleaded guilty to bail jumping in the first degree with the promised sentence as indicated. The ensuing plea colloquy covered the standard inquiries and defendant made the appropriate responses. On the date set for sentencing, however, counsel informed the court that defendant wished to withdraw his plea. With the court's permission, defendant addressed the court directly, stating that he felt "coerced" into taking the plea because his attorney "kept telling me you were going to give me the maximum. So I felt pressured into taking the plea."
The court replied "[i]n fact I might have, had you gone to trial. Whether you're innocent or not, that would be up to the jury. Were they to find you guilty, you would be sentenced to substantially more than what was offered to you by the People." The court then asked both attorneys for their recollection of its statement with respect to sentencing after trial; both stated that the court had spoken of a possible sentence at the high end of that authorized by statute. Defense counsel recalled that the court told defendant of its "policy in cases like this to sentence near the top of the range," to which the court responded "I stand on that policy with a predicate felon, if there's a history of selling narcotics." Counsel then noted for the record that he joined in defendant's motion, although he made no additional argument.
After reviewing defendant's allocution, including his response that he had not been threatened or coerced into taking the plea, the court denied the motion and imposed the promised sentence.
Contrary to the People's argument that the court merely advised defendant of his potential exposure upon conviction after trial, the court's statement plainly did more than that. Notwithstanding the reference to possible "mitigating circumstances," the court advised defendant not just of the statutory sentencing guidelines but of its personal "policy" to sentence defendants such as himself (predicate felony offenders in drug cases) to the high end of the spectrum — 12 1/2 to 25 years — almost four times the sentence under the plea offer. This was effectively reiterated during the colloquy upon defendant's oral motion to withdraw his plea, when the court stated not that defendant could be "sentenced to substantially more" after trial, but that he " would be sentenced to substantially more." (Emphasis added.) The inescapable effect of the court's statement, under the circumstances in which the plea was taken, was to coerce defendant into pleading guilty, and we find, therefore, that the plea was not a voluntary one.
The statement made by the court in the instant case is clearly distinguishable from those cases where a court informs a defendant of the possible sentences available under the indictment ( see, e.g., People v. Tien, 228 A.D.2d 280, lv denied 88 N.Y.2d 970; People v. Safa, 209 A.D.2d 199, lv denied 84 N.Y.2d 1038; People v. Clark, 207 A.D.2d 709, lv denied 84 N.Y.2d 934; People v. Stephens, 188 A.D.2d 345, lv denied 81 N.Y.2d 893). Indeed, in People v. Tien (228 A.D.2d, supra, at 281), we observed that the record did not support defendant's claim that the court there had "`threatened' to impose a greater sentence if defendant opted to go to trial". In the instant case, the court did not "threaten" to impose a greater sentence — it virtually promised to do so, according to its stated "policy" in such cases. Accordingly, defendant's motion to withdraw his plea should have been granted.
Concur — Milonas, J.P., Rosenberger, Wallach, Nardelli and Rubin, JJ.