Sergio De La Pava - A Naked Singularity

THE CLERK: Number twenty-six on the calendar, Richard Hurd, also from the pens. Hurd, Richard Hurd.

DEFENSE COUNSEL: Casi (unintelligible) for the defendant.

MR. ZORN: David Zorn for the People.

THE COURT: Come up.

(Conference at side bar.)

DEFENSE COUNSEL: I have an application.

THE COURT: Yes.

DEFENSE COUNSEL: My client has authorized me to withdraw his previously-entered plea of not guilty and enter a plea of guilty to the crime of Criminal Sale of a Controlled Substance in the Fourth Degree in full satisfaction of the indictment before this court.

THE COURT: Mr. Hurd, you’ve heard what your attorney just said. He’s indicated that you wish to plead guilty to the lesser charge of Criminal Sale of a Controlled Substance in the Fourth Degree. Is that what you wish to do?

(The defendant conferred with his attorney.)

THE COURT: Mr. Hurd listen to me. First of all, I’m going to have to ask you to keep your voice down in the courtroom because you’re screaming. Of course you have the absolute right to consult with your attorney before making this decision. My understanding from my discussions at the bench with your attorney is that you’ve decided to plead guilty. You do not have to plead guilty, however, you can decide that you want the case to proceed to trial in which case we will set a trial date today. I assure you that I have no interest either way. If you accept the People’s offer you will receive a sentence of 3 to 6 years in state prison. If you go to trial and lose you can be sentenced to up to 12½ to 25 years in state prison. However you decide it’s all the same to me, but we do have a rather full calendar and I am going to ask you to decide now. Do you wish to plead guilty, yes or no?

(The defendant conferred with his attorney)

THE DEFENDANT: Yes.

THE COURT: Very well. People can I have a copy of the indictment? Now before I can take this plea I have to ask you some questions. Again, at any time you can discuss with your attorney the answers to these questions. Now you understand, I hope, that by pleading guilty you are giving up certain crucial rights. You are giving up, for example, your right to possibly have evidence suppressed. Do you understand that?

THE DEFENDANT: Huh? I don’t understand.

THE COURT: Your attorney has made motions in this case seeking to suppress certain evidence that the police have obtained. Specifically, I believe the motion in this case dealt with United States currency recovered from you and a statement attributed to you. Your attorney has moved to suppress this evidence on the basis that it was obtained in violation of your constitutional rights. Pretrial hearings have been granted as a result of these motions. At the hearing, your attorney and the DA would litigate whether the evidence should be admissible. It is possible that at the end of that hearing the judge would rule that all or some of the evidence which is the subject of the hearing must be suppressed and cannot be introduced at your trial. When you take a plea, however, you waive your right to challenge the police conduct and no hearing is conducted. Do you understand that you waive that right?

THE DEFENDANT: They did violated my rights. They…

THE COURT: Talk to your attorney.

(The defendant conferred with his attorney)

DEFENSE COUNSEL: He understands.

THE COURT: Do you understand, Mr. Hurd, that you give up that right?

THE DEFENDANT: Yes.

THE COURT: Fine. When you plead guilty, you also waive your right to a trial by jury. At a jury trial you would be presumed innocent until proven guilty. The People would have the burden of proving your guilt beyond a reasonable doubt and they would have to do so to the unanimous satisfaction of twelve jurors. At trial you would have a Sixth Amendment right to confront the witnesses against you. That means your attorney would be able to cross-examine the witnesses the People present in an effort to prove your guilt. Do you understand?

THE DEFENDANT: Yes.

THE COURT: Were a trial to be conducted in this case, you would also have the right to call witnesses on your behalf as well as to testify on your own behalf. Do you understand that you have that right and do you understand that you give up that right by pleading guilty?

THE DEFENDANT: Yes.

THE COURT: Do you further understand that at a trial you would also have the opposite right, meaning that if you did not wish to testify, you could not be compelled to testify. You have a Fifth Amendment right to remain silent. Do you understand that by virtue of this plea you now renounce that right?

THE DEFENDANT: How to pronounce it?

THE COURT: Renounce! Do you understand that you give up that right and no longer have it?

THE DEFENDANT: Yes.

THE COURT: Now are you currently under the influence of any medications, drugs or alcohol?

THE DEFENDANT: No thank you.

THE COURT: And are you entering this plea of your own free will? In other words, is somebody coercing you into pleading guilty or are you pleading guilty because that is what you want to do?

THE DEFENDANT: No, it’s my will. My will is free. That is to say, I free will it.

THE COURT: Are you pleading guilty in this case because in fact you did commit the crime of Criminal Sale of a Controlled Substance in the Fourth Degree?

THE DEFENDANT: No.

THE COURT: Counsel I’m not taking this plea.

(The defendant conferred with his attorney)

THE DEFENDANT: Yes, fine. Yes.

THE COURT: Are you sure? You don’t seem sure.

THE DEFENDANT: Yes.

THE COURT: Well what happened?

THE DEFENDANT: I sold drugs just like they said.

THE COURT: How? What happened?

(The defendant conferred with his attorney)

THE DEFENDANT: The guy came up to me. I didn’t never say nothing to him but he said he wanted to cop and did I know where he could cop. And he said he wanted one so I took him to the guy in the store who I know sells because I bought from him many times previous. And that was it.

THE COURT: And did this person indeed buy drugs?

THE DEFENDANT: Yeah, he bought one for five dollars. But I never touched the drugs or took the money from the guy or anything so I still say I’m innocent.

THE COURT: Well you did this for remuneration isn’t that correct?

THE DEFENDANT: I did it for the guy because he asked me. I don’t even know what nation he was from.

THE COURT: Did you receive money for your role in the transaction you just described?

THE DEFENDANT: Ain’t nobody rolled the guy! That crackhead got his drugs.

THE COURT: No, after the crackhead, um, the undercover officer, purchased the drugs did you receive any money for your efforts?

THE DEFENDANT: One dollar! Now answer to me this. How could I be guilty of a drug sale if A they wasn’t my drugs to begin with and number two I only got one dollar!

THE COURT: Who gave you the dollar?

THE DEFENDANT: The dude who sells drugs! He gives me a dollar for every customer I bring him. He gave me the dollar after the covered officer bought the stuff and just before we was both arrested. I also want to put on the record, is this on the record your honors?

THE COURT: Yes. Everything is being taken down by the court reporter.

THE DEFENDANT: Then I want to stipulate that the person who gave me the dollar, my co-defendant, is in here and he has made it be known to me, through the proper channels and whatnot, that he wants his dollar back because I bought him a cop as a customer. And I also want it stipulated that the street interpretation of that is that he will cause physical pain unto me if he gets the opportunity.

THE COURT: Okay, well that’s totally incorrect usage of the word stipulate but your point is well taken and you can request protective custody through your attorney if you wish later. In the meantime, we’ll continue with the allocution. The conduct you’ve described does constitute a drug sale under New York law so there’s no legal impediment to the plea. Now you’ve been promised that on the day of sentencing you will be sentenced to an indeterminate prison term of three years to six years. Has any other promise been made to you to get you to plead guilty that we are not aware of?