In a June 12th decision, courtesy of New York Legal Update, the Court of Appeals upheld the conviction by plea in People v Parilla, 2007 NY Slip Op 05133.  In this case involving a 1993 rape, a 1996 blood sample and a 2003 prosecution, the defendant brought a pro se motion to dismiss on statute of limitations grounds.  The trial court rejected it because he was a represented defendant. 

The judge then talked defense counsel out of adopting the motion, off the record, by telling her that it wouldn’t be granted.  The defendant ultimately took a plea which included a waiver of appeal, and moved the next day via a 440.10 motion on ineffective assistance grounds. The defendant then appealed the whole enchilada.

The peculiar aspect of this case lies in the harsh description of the defendant’s purpose in appealing.  The Court held:

Defendant attempts to sidestep the consequences of his plea by claiming ineffective assistance of counsel. Under the circumstances of this case, were we to consider defendant’s statute of limitations claim on the merits, we would be reviewing the very argument that defendant waived when he pleaded guilty and waived his right to appeal. [citations omitted, emphasis added.]

Sidestep the consequences?  Is that not the point of essentially every appeal?  Notice the judicial slight of hand by skipping over the ineffective assistance claim and going to the underlying statute of limitations argument, which, the Court held, was what was waived by the plea.  Except for the fact that a waiver, to be effective, must be knowing and intentional, and the one thing that is clear throughout is that the defense attorney was bullied into submission by the trial judge. 

A second theme that comes across loud and clear is that the defendant, having been in prison for an extended period before this plea (yes, the defendant was not a fine upstanding citizen), became a jail house lawyer.  He was the poster boy for the phrase, “a little knowledge is dangerous.”  Of course, since his lawyer failed him, this may not have been the worst thing.

The old formulation for ineffective assistance was a “mockery of justice,”  a somewhat subjective standard.  But in this case, it was met.  This plea smells of a farce and sham, where the defense lawyer was pushed into not pursuing the statute of limitations defense in order to avoid annoying the judge.  The fact that the judge had told her the motion would fail is ridiculous.  Since when is that the measure of whether to move for dismissal? 

And so, while few can feel a great deal of sympathy for this defendant, the precedent of this decision, combined with the harshness of its language, is quite disturbing.  The Court of Appeals did a quick step around the real issue, knowing full well that the defendant was denied effective assistance of counsel, and upheld an unintended and unknowing waiver, to avoid allowing the defendant to fox trot his way to freedom.  Another bad case making bad law.