Gotham Gazette

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Court Limits 'Today Only' Plea Bargains

Plea "bargains," which are not necessarily bargains for any of the participants, are what keep the criminal justice system from collapsing under the weight of the number of cases. In 2008 of 7,611 new felonies filed in New York County (Manhattan), 6,142 cases ended in guilty pleas, 995 cases were dismissed and 397 had verdicts after trial, according to the New York State Unified Court System. The Bronx had 4,876 pleas and 137 trial verdicts. And in Kings County (Brooklyn) there were 5,250 pleas and only 267 trials.

There are rules regarding the pleas, however. The Supreme Court Appellate Division Second Department, sitting in Brooklyn has vacated the conviction in the case of People against Terry Grant on the grounds that his guilty plea was coerced by a judge in Nassau County. Grant, a dentist, was charged with fraud and falsifying business records by submitting bills to insurance companies for work he had, in fact, never performed.

The decision resulted in the guilty plea being vacated because Judge George R. Peck gave Grant only five minutes to decide whether to plead guilty or go to jail until his next court appearance at least. In other words, if he pled guilty he would walk out of the courthouse, but if he did not enter the guilty plea, he would be incarcerated -- his $1,000 bail would be revoked and he'd be remanded to the custody of the Department of Correction.

The decision is unusual because guilty pleas are not usually set aside on appeal. Moreover the case was a year old, and it appears that the Peck was eager for it to end one way or the other. Still, this kind of "choice" is a common scenario in criminal courts, where judges sometimes tell defendants that "it's a one-day sale," and they won't be offered the same deal if they don't plead guilty immediately. But allowing the choice of the plea or jail to be on the record laid the groundwork for the appeal.

Justice Steven W. Fisher and the appellate panel found that Peck had confused the purpose of bail, which is to ensure the defendant's return to court, with the matter of entering a plea. "Bail status," the Appellate Division has now said, "concerns only the kind and degree of control or restriction that is necessary to secure a defendant's attendance when required. It has no legitimate connection to the mutuality of advantage underlying plea bargaining."

Fisher wrote that when a defendant pleads guilty, it relieves the prosecution of having to prove guilt beyond a reasonable doubt and eliminates the possibility of the defendant being found not guilty. In exchange, the defendant almost always receives a more lenient sentence than would be imposed after a trial. This is done because of "the need to dispose criminal cases without trial so that the particular local jurisdiction can manage its criminal caseload."

Grant's Choice

The record contained the following from Peck. "If he [Grant] wants the plea deal, I will continue the bail status that he is in." But "if he doesn't take the plea deal today, I'm going to remand him until Monday."

At that point, Grant, who was represented by counsel, pled guilty. Peck had already advised him that if he didn't plead guilty but maintained his right to a jury trial and was convicted, he would be sentenced to state prison. However, if he pled guilty he would probably be placed on probation.

The proceedings took place on a Friday. The defendant could think about it over the weekend, but he'd have to think about it in jail. If he wanted to go home, he would have to plead guilty right then to grand larceny and related crimes.

Grant had five minutes to make his decision. And he decided to plead guilty and leave the courthouse. This is a common scenario in criminal courts, where judges tell defendants that they won't be offered the same terms if they don't plead guilty immediately.

Prior to accepting the plea, the judge asked certain required questions, including: Has anyone threatened or coerced you? Is this plea voluntary? For the plea to be accepted, Grant had to answer "no" to the first question and "yes" to the second.

The judge warned Grant that, by pleading guilty, he would waive his right to appeal (which is not correct where there is a claim of coercion), would have to pay restitution and a fine, and his license would at least be suspended. Also, the district attorney could recommend a prison term of one and a third to four years, but the court was inclined, subject to a probation report, to sentence the dentist to probation. Ultimately Grant received five years probation and had to pay restitution of $10,102.20 and a fine of $20,000. His dental license was not revoked or suspended.

Grant tried to withdraw his guilty plea before sentencing, because, he said, it had not been voluntary, but was entered under duress and coercion. Peck denied that request, saying there had been no coercion. Grant appealed to the higher court.

The Court's Decision

The appellate judges concluded, "When the court threatens to increase bail or remand the defendant unless a guilty plea is entered, any resulting plea cannot be deemed voluntary because the defendant's decision to plead guilty would no longer represent a free choice. ... A threatened change in bail status may not be used by the prosecution or the court as a 'bargaining chip' to persuade a defendant to plead guilty." Here, they found, "The court made an unadorned threat to remand the defendant without bail if he did not plead guilty, and that the threat was a powerful factor in persuading the defendant to enter the plea when he did. ... Therefore, the defendant's guilty plea was not voluntary.

Since the waiver of any right must be knowing, intelligent, and voluntarily, the question before the appeals court was whether that test was met in Grant's case. The Appellate Division found that it was not. Therefore, since the guilty plea was the product of unreasonable pressure, it was not voluntary and was vacated.

According to Howard R. Birnbach, Grant's attorney for sentence and appeal only, the case now is scheduled for trial. The district attorney is Kathleen M. Rice with Judith R. Sternberg and Barbara Kornblau of counsel.

Emily Jane Goodman is a New York State Supreme Court Justice

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