Wednesday, September 15, 2010

Attacking Guilty Plea as Not Knowing and Intelligent May Not be Knowing and Intelligent

When an appellant successfully challenges a conviction which followed a trial, the imposition of an increased sentence after a retrial is presumed to violate the Due Process Clause of the New York State Constitution, even where the retrial is before a different judge than imposed the original sentence (People v Van Pelt, 76 NY2d 156, 158 [1990]).

There is no parallel presumption of vindictiveness when a person who successfully challenges a conviction obtained pursuant to a guilty plea is then tried, convicted, and sentenced to a longer sentence than originally imposed. Thus, appellate counsel must warn would be appellants that a successful appeal of a guilty plea might be Pyrrhic victory.

Today's news provides a clear illustration of these risks.

This past February, the Appellate Division, Fourth Department vacated Quinntarius White's conviction for depraved murder following guilty plea because the plea colloquy established that Mr. White acted intentionally and thus, the plea was not at his guilty plea was not knowingly, voluntarily and intelligently entered (People v White,70 AD3d 1343 [4th Dept 2010]). Thus. Mr. White's 15 year to life sentence was vacated.

As reported in today's Rochester Democrat and Chronicle (see) Mr. White was then tried, convicted of intentional murder and sentenced to 20 years to life.

Perhaps Mr. White's longer sentence might help others better appreciate the risks of challenging a guilty plea.

Wednesday, September 1, 2010

Prosecutors Have No Standing to Object to Subpoenas for Documents from Governmental Agencies


Jill Paperno, Esq.
Second Assistant Monroe County Public Defender

Defense attorneys often seek subpoenas related to their cases. When defense attorneys subpoena documents from a governmental entity, we have to serve notice on the prosecutor. The prosecutors often object to such subpoenas on a variety of grounds. But do they have standing to object? As detailed below, it appears that the answer is a firm "no."

A. The Prosecutor Has No Possessory or Proprietary Interest in the Records

Although he is entitled to notice of subpoenas defense counsel wishes to serve on governmental agencies, the prosecution does not have standing to contest the subpoenas. That right is the right of the agencies, and there is no language in either CPLR 2307 or CPL 610.20(3) that provides the prosecution with the right to object to the subpoenas.

In People v. Di Raffaele (55 NY 2d 234), the Court of Appeals affirmed defendant's conviction for usury in the second degree. In response to defendant's argument that the prosecutor used materials obtained through improper use of subpoenas, the Court stated, "Even if it be assumed that the subpoenas in question were indeed null and void, whatever may have been the right of the telephone company to challenge their validity, defendant, having no possessory or propietary interest in the records, has no standing to do so (cf. People v. Ponder, 54 N.Y.2d 160)."

In a case in which the defendant raised a similar argument, People v. Daniel (206 AD2d 856), the Fourth Department, citing, inter alia, DiRaffaele, held that

There is no merit to the contention that the prosecutor improperly obtained telephone records, tax returns and court records to be used at defendant's trial. Defendant lacks standing to challenge the seizure of documents that are maintained by third parties because he has no privacy interest in them (cites omitted).

In People v. Doe (96 AD2d 1018), the First Department held that the Judge-defendant had no standing to preclude production of bank records. The Court explained that,

bank records, although they may reflect transactions between the bank and its customers, belong to the bank. The customer has no proprietary or possessory interests in them. Hence, he cannot preclude their production. (Cites omitted) The rule is the same with respect to telephone records (cite omitted). Accordingly, if the owner of the records, in this case the Chemical Bank, is not opposed to producing them, the customer is powerless to preclude their production.

(96 AD2d at1019).

In two trial court decisions squarely addressing the question of whether the prosecutor has standing to oppose issuance of subpoenas to third parties, both courts concluded they did not. In People v. Grosunor (108 Misc. 2d 932), the Court considered whether the prosecutor had standing to object to defendant's subpoena of Department of Social Services records. The court, in an extremely well reasoned decision, noted that representation by the prosecutor of the agency from which materials were being sought

would appear to be in violation of local law (cite omitted) and would constitute a conflict of interest between agencies involved. Generally, the office of the District Attorney is charged with the responsibility of initiating and conducting all prosecutions for crimes and offenses cognizable by courts of the county in which he serves (cites omitted). In addition, the District Attorney is elected by and for the County of the Bronx and discharges his duties within and for that county.

The Department of Social Services, the nonparty recipient of defendant's subpoena, is an agency of the City of New York and, as such, has a statutory attorney and a legal division separate and apart from the District Attorney (cite omitted). For this reason, the proper party to challenge the validity of the subpoena is the Department of Social Services and not the District Attorney's office. As the court pointed out in Raynor v. Kirk, 30 Misc.2d 1041, which held that the District Attorney had no authority to represent the Nassau County Commissioner of Police, a member of the county police department and Nassau County itself, we are dealing with public officers and municipal agencies whose powers and duties are spelled out specifically by statute. In the case at bar, the relevant statutes require a holding similar to the one reached in Raynor, supra.

(People v. Grosunor, 108 Misc. 2d 932, 934-935)

The Monroe County District Attorney's duties are set forth in the Monroe County Charter, C7-8, and do not include representation of any police agencies. Each agency does, however, have its own counsel, and counsel for each agency has already indicated that they do not oppose issuance of the subject subpoenas in this case.

The Court in Grosunor also noted that "the motion to quash is made by the adversely affected and interested person and not by strangers to the litigation or by the District Attorney." 108 Misc.2d at 935.

In People v. Weiss, 176 Misc.2d 496, the trial court recognized that the prosecution had "no standing to quash a defense subpoena served on a third party, not its agent (cites omitted)." 176 Misc. 2d at 497.

The District Attorney's Office does not have the statutory authority to represent other agencies, and moving to quash a subpoena on another agency would constitute such representation. The District Attorney's Office does not fall within the category of parties traditionally recognized by courts as having standing to move to quash subpoenas to third parties. The statutes providing for notice to the prosecutor of subpoenas to be served on governmental agencies does not provide a procedure for the prosecution to object. For all of these reasons, defendant respectfully submits that the prosecutor does not have standing to object to defense subpoenas served on third parties.

B. The Prosecutor's Arguments

In response to defendant's motion in a recent case, the prosecutor cited Brown v. Grosso (285 AD2d 642) for the proposition that he has standing to object to the subpoenas defense counsel seeks in this case. He noted that the Court in Brown v. Grosso cited Matter of Pirro v. LaCava, 230 AD2d 909, Morganthau v. Young, 204 AD2d 118 and Matter of Morganthau v. Cooke, 85 AD2d 463.

In Brown v. Grosso the Second Department granted a writ of prohibition denying enforcement of subpoenas served upon the Queens County District Attorney's Office and the Civilian Complaint Review Board. Without stating its reasoning, but citing the cases noted above, the Court stated "the District Attorney had standing to seek prohibition of the enforcement of the subpoena served upon the Civilian Complaint Review Board."

In Pirro v. LaCava, cited in Brown, the Second Department issued a writ of prohibition reversing the trial court's granting of three defense applications. The trial court had granted defense requests to preserve all evidence relating to the criminal investigation, for pre-indictment issuance of a subpoena duces tecum directing the Medical Examiner's Office to produce material related to the autopsy examination, and for a pre-indictment application of the defendant to allow inspection and documentation of the victim's home. The decision did not indicate that there was any specific need for the material cited by the defense, nor a specific proceeding approaching for which the material was necessary. Thus, the Court concluded that the requests were an effort to expand discovery. Notably, the Court characterized the orders as requiring "the People to make disclosure which they are not required to make pursuant to the governing statutes (cites omitted) 230 A.D.2d at 910.

In Morgenthau v. Young the First Department held that, in a civil forfeiture proceeding, the prosecutor who was seeking attachment of defendant's assets had standing to move to quash subpoenas that would have an impact on an underlying criminal case. Ultimately, however, the Court denied the prosecutor's application to quash subpoenas, noting that the factual dispute at the hearing relating to attachment of the defendant's assets "made it a proper exercise of discretion to permit defendants to subpoena the other participants in these conversations, who will be the main prosecution witnesses in the underlying criminal case." 204 AD2d at 119.

Finally, in Morgenthau v. Cooke, the First Department considered the District Attorney's challenge to the plan temporarily assigning judges in New York City courts. The Court noted that the District Attorney had standing to challenge the judges' reassignments.

Thus, the cases cited by the prosecutor in support of his contention that he had standing to object to issuance of the subpoenas sought by defense counsel, were either inapplicable to the present situation procedurally or substantively.

Morgenthau v. Cooke is inapplicable as it related to a prosecutor's standing to challenge assignment of judges. In Young, an attachment proceeding, there was apparently a showing that the prosecutor's case would be detrimentally impacted by the issuance of the subpoenas (though ultimately the relief sought by the prosecutors, quashing of the subpoenas, was denied). Such a showing was not made in the case at bar. And unlike the situation in Young, a civil proceeding, if the issuance of the subpoenas in this case might damage the prosecutor's case due to revelation of exculpatory material, defendant has a right pursuant to Brady v. Maryland to obtain the material without a subpoena and the prosecutor has an obligation to disclose it.

In the only two decisions stating the prosecutor has standing to challenge a subpoena, Brown v. Grosso and Pirro v. LaCava, both Second Department decisions, the Court found that the defense was seeking expansive and impermissible expansion of discovery, and thus permitted the prosecutor to intervene by filing writs of prohibition. In the two criminal cases, there is no indication that the prosecutor was permitted to file motions to quash the subpoenas. There is no indication that the Court relied on any authority to find that a party without a possessory interest in the records had standing.

Significantly, there is no provision contained in the Criminal Procedure Law for the prosecutor to file a motion to quash once notice is received.

Plea Without Written Order Denying Suppression Forfeits Issues

Get it in writing. How many times have we heard that? It's good advice, sometimes it's even the law.

CPL 710.70(2) provides that "An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty." The word used is "order", while the Legislature elsewhere in the same article freely used the word "determination" (e.g. 710.40[3] "When the motion is made before trial, the trial may not be commenced until determination of the motion.").

Because the statute provides only that an "order" is appealable, the Appellate Division, Fourth Department has ruled that the "defendant forfeited the right to our review .. inasmuch as he pleaded guilty before the court determined whether suppression was warranted." (People v Nunez, 73 AD3d 1469). And in case you were hoping that the court's use of "determined" might help in cases where the judge rules against you, but does not issue an order finally deciding the issue against you, stop hoping. The case concludes with "Although a defendant convicted upon a plea of guilty may seek review of 'an order finally denying a motion to suppress evidence' (CPL 710.70[2]) upon an appeal from a judgment of conviction, no such order was issued in this case." As if Nunez was unclear, see also People v Dwyer, 73 AD3d 1467; People v Releford, 73 AD3d 1437; People v Ellis, 73 AD3d 1433, like Nunez all decided by the Appellate Division, Fourth Department on May 7, 2010.

This is something you can expect to see many, many times over the coming years. If there is any possibility of filing a notice of appeal from a plea following the denial of any suppression motion, you need to have the resulting decision reduced to writing, or the issue is forfeited by the plea of guilty. Get it in writing is good advice, even if what you get in writing is bad news.