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Petitoner Files Regarding Juvenile Delinquency Matter



In this family case, Respondent moves this Court by way of Notice of Motion to with draw his admission with respect to this juvenile delinquency matter; and assuming that that part of the motion is granted, to restore the original petition “as it existed at the time of the admission;” and thereafter to proceed with the fact-finding hear-ing.

The Nassau County District Attorney’s Office originally charged this Respondent in the District Court of Nassau County with the offense of burglary in the first degree in violation of §140.30(2) of the Penal Law, a class B felony. Thereafter, and on May 30, 2006, a Judge of the District Court, with the consent of the District Attorney’s Office, and of the Defendant’s attorney, transferred this matter, for all purposes, to the Family Court.

In accordance with the order of May 30, 2006, the matter was transferred to this Court as a designated felony and this Court heard the matter on May 31, 2006, at which time a denial was entered, Respondent was remanded and the matter was set down for a series of conference dates, with the statutory times being waived.

Thereafter, a mental health forensic report was ordered and submitted to this Court, along with the probation report, all of which recommend residential placement to address the many needs of this Respondent.

On September 8, 2006, upon receipt of all of the reports, this Court advised it was ready to follow the recommendation of the probation department and the mental health expert, and adjudicate the Respondent a juvenile delinquent with respect to his admission, and on consent placement was to be for 18 months through the New York State Office of Children and Family Services for a specific placement at Berkshire Farms.

Regarding the withdrawal of an admission, Family Court Act §321.4(2) states: At any time prior to the entry of a finding under section 352.1 the court in its discretion may permit a respondent who has entered an admission to the entire petition or to part of the petition to withdraw such admission, and in such event the entire petition as it existed at the time of the admission shall be restored.

The admission was made and the allocution taken on July 21, 2006. The Respondent attaches as his Exhibit B a copy of the transcript of the minutes of that proceeding. In relevant part, that transcript shows the following (all pages and line numbers refer to the transcript of that date): initially and as set forth in the transcript, the Court thoroughly reviewed with the Respondent and his custodial person, his right to continue with the fact-finding hearing or in the alternative to make an admission, and thoroughly reviewed the dispositional alternatives available to the Court on a future date.

The sole basis upon which the Respondent’s instant application rests, is an allegation that the Respondent and his custodial person apparently thought, or believed, that the disposition would be probation, rather than placement, and they further allege that a promise was made by the Deputy County Attorney that subsequent to the admission, he would be released to his aunt.

The Court notes that there is no allegation or suggestion of any kind whatsoever, that this Court ever made any promise to the Respondent regarding a proposed disposition, nor in fact did the Court ever do so. Respondent himself refers to the alleged promise by the Deputy County Attorney as “a possibility” only (paragraph 7 of his supporting affidavit) and that if he “pled guilty” [ie. made an admission] that the Deputy County Attorney “would recommend that I go home” (paragraph 8 of his supporting deposition).

Furthermore, and as set forth in the transcript of July 21, 2006, this Court thoroughly reviewed all of the dispositional alternatives, and in fact specifically told the Respondent that, regarding those alternatives available to the Court on the disposition date: “[T]his is what will happen to you. It will be one of these. I don’t know which.” (Trans. p.6, l.24-p.7, l.1.)

A very thorough allocution was taken, and the Court specifically asked the Respondent whether anyone had forced him to settle this case and not continue with the fact-finding hearing (he answered no) and that he was doing this “freely, willingly and voluntarily” (he answered yes).

The Court then addressed the custodial person, the aunt, and asked her the same questions, as to whether any threats or promises were made to her (she answered no) and whether she was doing this freely, willingly and voluntarily (she answered yes).

It is only now, when the Respondent is met with the fact that the dispositional recommendation is that he be placed for 18 months, that he now alleges that he did not have a correct understanding, and that his admission was based solely upon an alleged promise by the Deputy County Attorney as to the fact that he would be immediately released to his aunt and, apparently, that there would be no placement at the time of disposition. It should be stressed that the Deputy County Attorney adamantly denies that she made any such promise to the Respondent or his aunt.

The question of whether a Respondent should be permitted to withdraw his plea rests in the sound discretion of the trial court, and hearings are granted only rarely.

Furthermore, so long as the trial court adequately allocuted the Respondent in accordance with statutory and constitutional requirements, and the Court did not improperly require the Respondent to incriminate himself, the admission will stand, and this is even so where the sequence of the allocution may not have been in any particular order, as “incrimination” does not attach until the Court accepts the plea; or where the defendant has not specifically acknowledged committing every element of the crime, so long as he provided a factual admission for each element; or where there was a discrepancy as to the site of commission of the crimes.

In addition, it has been held (in an Article 10 case) that where an application was made months following a party’s sworn admission in court, and where the allegations were inconsistent with the sworn admission allocution, that the admission would stand and the application to vacate the admission was denied.

Likewise, where a defendant freely admitted the facts underlying his crime and pled guilty, it was held that the County Court properly exercised its discretion in denying defendant’s motion to withdraw his plea on the grounds that it was not voluntary and intelligently entered.

There is, therefore, no basis for assuming that defendant was not cognizant of the legal implications and personal repercussions of his action.

Absent a showing that defendant’s plea was baseless, the Judge to whom the motion is addressed must be entitled to rely on the record to ascertain whether any promises, representations, implications and the like were made to the defendant.

As previously noted, the court took painstaking measures to insure that the defendant fully understood the consequences of his guilty plea. Further, the court informed defendant, in emphatic terms, that no promises were being made concerning the sentence defendant could receive. If the court had indeed assured defendant’s counsel that it would follow the prosecution’s sentence recommendation during an off-the-record bench conference, it was incumbent upon defendant’s attorney to place that promise, in unmistakable terms, on the record….[V]acatur of defendant’s plea on this ground would serve to undermine the integrity of plea negotiations. Public policy mandates that any remnants of the clandestine atmosphere of the plea negotiating process be eliminated…..

It follows that a motion to withdraw a guilty plea will not be granted merely for the asking, for as we have observed in another context, a guilty plea generally “marks the end of a criminal case and is not a gateway to further litigation.”

The case law clearly indicates that a motion to withdraw a guilty plea (with few exceptions) may only be made where the court has not properly allocuted the defendant or respondent, or upon a claim of ineffective counsel, or upon a claim of mental illness.

Whether to allow a defendant to withdraw his guilty pleas is a matter committed to the discretion of the trial court. Generally, a guilty plea may not be withdrawn absent some evidence or claim of innocence, fraud or mistake in its inducement.

Furthermore, where a defendant has been fully informed of the rights he is waiving by pleading guilty and proceeds to admit the acts constituting the crime, a subsequent protestation of innocence which is not substantiated by any evidence is generally insufficient to support a request for vacatur of the plea


The defendant’s contention that he was coerced by his attorney is belied by his statement during the plea allocution that he had not been forced into pleading guilty.

The matter at bar is very similar to People v. Polite. Respondent in the matter at bar knowingly and voluntarily gave his admission, and freely admitted as to the acts which he had done, which would constitute a crime if he were an adult. He and his aunt freely admitted during the allocution that the admission was being made without any promises by anybody as to further proceedings or what would happen in those further proceedings, and that the admission was being made freely, willingly and voluntarily.

In addition to all of the cases cited above, there are a legion of other cases regarding withdrawal of a guilty plea or an admission; however, when such applications are granted, they are virtually all based upon claims of ineffective counsel, failure of the trial court to sufficiently allocute the defendant or respondent, or upon a claim of mental illness, none of which are alleged in this matter. Here, the Respondent and his aunt candidly admit that, at most, the Deputy County Attorney stated she would “recommend” release. Clearly, this allegation, even if true, together with the Court’s unambiguous allocution, is not sufficient to grant a withdrawal of the admission, nor even to allow a hearing.

Since nowhere in the instant motion does the Respondent, his aunt nor counsel allege any of these three grounds, and the sole ground alleged is a purported promise by the Deputy County Attorney to “recommend” release, the Court finds that such an application is insufficient to grant the relief the Respondent seeks.

Accordingly, the motion by Respondent to vacate his plea is denied in each and every respect.

If you have problems involving legal issues, you can consult Stephen Bilkis and Associates. We are always ready and available to hear your concerns. We have offices throughout the New York area, including locations in New York City, Manhattan, Bronx, Brooklyn, Queens, Staten Island, Long Island, Nassau County, Suffolk County and Westchester County.

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