Citing Judge's 'Disdain' for Defendant, Panel Corrects 'A Gross Miscarriage of Justice'

Citing Judge's 'Disdain' for Drug Defendant, Panel Cuts Sentence
The New York Law Journal by Brendan Pierson  -  April 25, 2012

A Manhattan judge overstepped her authority when she refused to go along with a plea agreement in a drug case in which she did not find the defendant "worthy of sympathy," a unanimous appeals panel has ruled, calling the judge's refusal "a gross miscarriage of justice." The Appellate Division, First Department, opinion in People v. Anonymous, 319/09, written by Justice Peter Tom, blasted Manhattan Supreme Court Justice Carol Berkman (See Profile) for displaying "hostility, even disdain" toward the unnamed defendant throughout the case and for arriving at a manifestly unjust three-year sentence for the defendant, who pleaded guilty in 2009 to acting as a lookout for a drug sale. Tom, joined by Justices John Sweeny, Leland DeGrasse, Sheila Abdus-Salaam and Sallie Manzanet-Daniels, reduced the sentence to time served. Following her arrest, the defendant reached a deal with prosecutors in the Manhattan District Attorney's Office in which she agreed to plead guilty to a Class B felony, but would be released and later allowed to replead to seventh-degree drug possession if she helped prosecutors go after drug dealers in her neighborhood. Berkman expressed doubt about the bargain, saying that the defendant, a heavy drug user, should instead undergo drug treatment and could face "temptation" if she returned to her neighborhood, according to Tom's April 24 opinion. Nonetheless, the defendant went along with the deal and was able to help prosecutors make several drug-related arrests. Her cooperation put her at substantial risk, with neighborhood drug dealers threatening her and calling her a "snitch," according to the opinion.

In December 2010, attorneys for the defendant and prosecution appeared before Berkman to ask that, in light of the defendant's cooperation, the original indictment be dismissed and the defendant be allowed to replead to seventh-degree possession and be sentenced to probation. The assistant district attorney asked that the proceeding be sealed so that the parties' counsel could explain how the defendant had cooperated without endangering her. Berkman, however, refused to seal the courtroom or even allow the attorneys to approach the bench, according to Tom's opinion. She complained that she had not been kept sufficiently apprised of the defendant's cooperation and criticized prosecutors for sending the defendant "back to the street to hang out with the same people that she has been hanging out with all of her life, so that she could continue to supply you with, I don't know what." When the prosecutor would not give more detail about the defendant's cooperation in open court, the judge said, "the People don't want to be heard." She also refused to hear defense counsel. She then said that she was "totally uninterested in this case or what you want done with it because there is nothing." "I can't even feel bad for [defendant] here, I don't think she is worthy of sympathy," she said, according to Tom's opinion. "I don't think she has shown the slightest sign of reforming her life. Nothing." In January 2011, the attorneys again appeared, this time without the defendant. They explained that the defendant had recently given birth, and again asked for the indictment to be dismissed. Berkman was unmoved, saying that "after your little detour and foul up, I have no idea what [defendant] has been doing the last couple of years, other than getting pregnant." The judge also said that, at the previous appearance, the defendant "didn't look like she was about to give birth to me." The judge added, "I understand she is a small woman. That does indicate certain other things. I'm not a doctor or anything."

In May, prosecutors provided the judge with a pre-sentencing report detailing the defendant's cooperation. The report revealed that the defendant had continued to use drugs, but said that she had fulfilled the plea bargain and should receive a sentence of probation. Berkman ultimately refused to dismiss the felony indictment and sentenced the defendant to three years plus three years of post-release supervision—longer than the 30-month and one-year sentences given to the people who actually sold the drugs while the defendant was acting as lookout. In dismissing the indictment and reducing the sentence to time served, Tom first acknowledged that plea agreements are not necessarily binding on courts. However, he wrote, a "defendant who has 'performed services for the prosecutor, at risk to himself,' absent 'compelling reasons' is entitled to 'receive the benefit of his bargain' through specific performance of the plea agreement," quoting People v. Danny G., 61 NY2d 169, 175-76 (1984). Tom said that Berkman's view that she had not been kept apprised of the defendant's status, even if true, was not a compelling reason to reject the plea bargain because "defendant should not be penalized for the People's purported shortcomings in this regard." He also said that the defendant's continued drug use was irrelevant to her fulfillment of the plea bargain.  The court's main concern, he wrote, should have been "concern that a defendant who has performed services for the prosecutor, at risk to himself, be treated fairly," again quoting People v. Danny G. Finally, Tom wrote that Berkman had been openly unfair to the defendant.  "During the proceedings, the court exhibited hostility, even disdain, toward defendant and, more importantly, a total disregard for her safety and welfare relating to her role as a drug informant for the District Attorney's office," he wrote.  He called Berkman's decision to give the defendant a longer sentence for acting as a lookout than her two accomplices received for selling drugs "especially jarring."  "The picture, as a whole, portrays a gross miscarriage of justice," he wrote.  "I'm very pleased about the decision," said Robert Dean of the Center for Appellate Litigation, who represented the defendant.  Manhattan Assistant District Attorney Susan Gline argued for the prosecution. An office spokeswoman declined to comment.  Brendan Pierson can be contacted at bpierson@alm.com.