N.Y.'s Death Penalty Plea Provision Is Struck

By Gary Spencer
New York Law Journal 
Wednesday, December 23, 1998

ALBANY -- Relying solely on federal constitutional law, the Court of Appeals yesterday struck down plea bargaining provisions of New York's capital punishment law which, the judges said,  "needlessly encourage guilty pleas." 

In a unanimous opinion by Chief Judge Judith S. Kaye, the Court ruled that provisions barring the
execution of defendants who plead guilty violate the Fifth and Sixth Amendments because "the
death penalty hangs over only those who exercise their constitutional rights to maintain innocence
and demand a jury trial." 

The ruling in Hynes v. Tomei, No. 146, and Relin v. Connell, No. 176, leaves the death penalty itself intact and will allow capital prosecutions to continue. Several attorneys on both sides said the decision, the first by the high Court to address the statute, did not appear to have any immediate impact on prior guilty pleas or trial convictions obtained since the law was enacted in 1995. 

In a prepared statement, Governor Pataki called the decision a "narrow ruling" that "will not impede the vigorous prosecution of death penalty cases." 

The decision allows plea bargaining to continue, although in a much more limited and perhaps even convoluted way, attorneys said. It prevents defendants from pleading guilty to first-degree murder while a notice of intent to seek the death penalty is pending, but it permits them to plead to a lesser offense at any time and permits them to plead to 1st-degree murder before a death notice is filed or after it is withdrawn. 

"We realize this result will reduce the flexibility of both prosecutors and defendants who wish to plea bargain in capital cases," Judge Kaye wrote.  "Indeed, our reversal in these cases may well have an ironic twist in that capital defendants will have fewer opportunities to avoid the possibility of the death penalty." 

The Court may well have understated the problem, according to prosecutors and defenders, who said the ruling does not appear to favor either side in future prosecutions. In those cases, its primary effect should be to encourage "more intensive plea bargaining" early in a case before the death notice is filed, said Capital Defender Kevin M. Doyle, echoing the views of half a dozen lawyers who participated in the appeal. 

But for the 12 defendants in the state who already face pending death notices, he said the option of pleading "is arguably foreclosed now" because the district attorney would first have to withdraw the death notice and most would be reluctant to take that risk. The notice cannot be reinstated once it is withdrawn, even if the defendant reneges on the plea deal. 

"District attorneys would have to rely on the good faith of the defendant, so to speak," said one defender, who believes the decision will "chill plea bargaining" in all cases where the death notice has been filed. 

Brooklyn District Attorney Charles J. Hynes was no happier with the outcome. "This is regrettable because it limits the discretion of the prosecutor to negotiate plea agreements with capital defendants ...," he said, declaring that he will seek leave to appeal to the U.S. Supreme Court. 

The plea bargaining issue in Hynes and Relin arose in first-degree murder cases at opposite ends of the state. Brooklyn Supreme Court Justice Albert Tomei ruled in People v. Michael Shane Hale that the plea bargaining scheme in the capital punishment law was unconstitutional because it imposed the risk of execution only on defendants who assert their Fifth and Sixth Amendment rights. Mr. Hale is still awaiting trial. 

Monroe County Court Judge John J. Connell reached the same conclusion in People v. Angel Mateo. Mr. Mateo was later convicted and the jury returned a death verdict last week. Sentencing is set for January. 

The Appellate Division reversed both decisions: the Second Department ruling in Hynes and the Fourth Department in Relin. 

The Court of Appeals reversed and declared unconstitutional the plea bargaining provisions in CPL 220.10(5)(e) and 220.30(3)(b)(vii). 

It relied almost entirely on the 1968 U.S. Supreme Court decision in United States v. Jackson, 390 U.S. 570, that struck the death penalty sanction from the Federal Kidnapping Act, which authorized execution for defendants convicted at trial but not for those who plead guilty. The Supreme Court said the scheme "effectively penalizes" defendants who exercise their right to trial. 

The plea bargaining scheme of New York's capital punishment law has the same infirmity, the Court of Appeals said, because it "explicitly provides for the imposition of the death penalty only upon a jury verdict. As a result ..., only those defendants who exercise the Fifth Amendment right against self-incrimination and Sixth Amendment right to a jury trial put themselves at risk of death." 

Prosecutors insisted there was a crucial difference between the statutes because the Federal Kidnapping Act allowed a defendant to plead guilty and avoid the death penalty without consent of the prosecutor, while the state's death penalty law requires consent of the district attorney. They argued the state law was not coercive because defendants did not have unilateral control of the process. 

But the Court of Appeals said the Supreme Court has found a requirement of prosecutorial consent is irrelevant. And the state court observed that both the federal and state statutes gave judges the discretion to reject pleas. "This judicial involvement did not cure the constitutional problem: the statute's infirmity was not coercion of guilty pleas and jury waivers but needless encouragement of them," Judge Kaye wrote. 

High courts in Massachusetts, New Jersey, New Hampshire and Washington have applied Jackson in the same way to strike down capital plea provisions, the Court said. 

"We are also aware that the Supreme Court has not revisited Jackson and its progeny in 20 years, and that these cases might be decided differently  today in light of the increased significance of plea bargaining and substantial changes in the administration of the death penalty," the Court said. But it said Jackson remains binding constitutional law unless it is overruled by the Supreme Court. 

In his statement, the Governor called for a new review of the Jackson decision. "While we consider legislation to address the Court's concerns, I would also urge the parties involved to appeal the case to the U.S. Supreme Court to challenge the 1968 case that the Court of Appeals relied on in making its ruling," the Governor said. 

As a remedy in Hynes and Relin, the criminal defendants asked the Court to strike the death sanction, as the Supreme Court did in Jackson.  This would have left life without parole as the maximum penalty. 

But the Court agreed with the trial judges that only the plea provisions should be struck. "[T]he very purpose of the Legislature and Governor in enacting the statute was to provide for capital punishment in New York," the Court said, and severing the capital plea provisions eliminates the constitutional violation without overturning the entire statute. 

Defense attorneys said they were unsure what effect the ruling might have on prior pleas and convictions. But Brooklyn attorney Barry Kamins, who represented Justice Tomei, said he did not believe it would provide a basis for invalidating prior guilty pleas. 

The Court of Appeals observed in a footnote that the Supreme Court had refused to vacate guilty pleas solely because they were obtained under statutes that were later invalidated by Jackson. 

In Hynes, the prosecution case was argued by Brooklyn Assistant District Attorney Jonathan Frank and, for the state, by Assistant Attorney General Jill Gross Marks. The defendant was represented by First Deputy Capital Defender Susan H. Salomon and Justice Tomei by Mr. Kamins. 

In Relin, Monroe County Assistant District Attorney Wendy Evans Lehmann argued the prosecution case. The defendant was represented by Deputy Capital Defender Joseph T. Flood and Judge Connell by Rochester attorney Donald M. Thompson. 

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