The People v. Mouhamed Thiam
Issue before the Court: Where an accusatory instrument charges multiple counts, with the lesser jurisdictionally sufficient and the greater facially deficient, does the court have the power to accept a guilty plea to the unsupported count; and does a claim that to do so is error survive a guilty plea?
Held: No, and yes.
CAL observes: The memorandum opinion of the four-judge majority stands for a simple proposition: an appeals court properly reverses a conviction, after a guilty plea, of a factually unsupported top count of a multi-count instrument. This claim is not waived because of a guilty plea.
Yet, the majority split into two concurring opinions, and three judges dissented, revealing fracturing beyond that simple statement. The Chief Judge, joined by Judge Wilson, helpfully reminds us that due process undergirds this question, noting that, fundamentally, defendants’ pleas must be knowing, and plea bargaining predicated on fairness. Where a defendant such as Mr. Thiam pleads to an offense that the prosecution has not adequately alleged, his bargaining position is unfairly altered (because he is under the potentially mistaken impression that the State can prove an offense of greater degree and seek a higher penalty than what it actually could), and he does not have the requisite knowledge to be able to enter a voluntary and intelligent plea. This rule flows logically from the Court’s holdings in felony prosecutions, where arguably there are even more procedural protections, that a court may not accept a guilty plea to a count of higher grade than any validly pleaded offense. Otherwise, plea bargaining would be “lopsided” and would “negatively impact the basic fairness of the criminal justice system.” The burden of “providing a properly pleaded accusatory instrument rests with the People,” which is why dismissal of the charges here in full is appropriate.
But, this opinion is arguably narrower in scope than what Judge Fahey, joined by Judge Rivera, writes in his opinion. There, Fahey seems to endorse the broader view that a guilty plea to any deficient offense in the accusatory instrument, even if that offense is not the top charge, must be vacated. (This understanding was predicated on a reading of C.P.L. § 100.40, which states that the jurisdictional sufficiency of each count in an accusatory instrument must be considered severally.) However, this question is one for another day.
Splitting on the question of remedy as well, Judge DiFiore concludes that the lesser, adequately pleaded charges may not be revived because that was a proper exercise of the Appellate Term’s authority, whereas Judge Fahey—concluding that it is “immaterial” whether a count dismissed as part of the plea to the top charge was adequate—would simply find that the pleaded-to count was deficient, and reverse and dismiss accordingly. The dissent, by contrast, would find that the facially sufficient lesser count saved the complaint, meaning that the error in allowing Thiam to plead to an unsupported count was nonjurisdictional and thus waived by guilty plea. Thankfully, this view did not command majority support.