New York Chief Judge Janet DiFiore. Photo: Tim Roske

The New York Court of Appeals ruled Tuesday that local criminal courts can't allow defendants to plead guilty to the highest charge against them—in place of lower charges—if those allegations are deficient on their face. 

The Court of Appeals was sharply split, with four of its seven judges agreed that an appellate court correctly threw out a defendant's conviction based on questionable claims.

The decision from the state's high court was seen as a significant win for supporters of criminal justice reform efforts.

Chief Judge Janet DiFiore wrote in a concurring opinion, separate from a one-paragraph memorandum by the majority, that allowing defendants to plead guilty to a higher-level, insufficient charge, rather than a valid, lower-level charge, wasn't fair.

"Defendant's guilty plea to a higher grade offense than any offense legally charged in the accusatory instrument is not a bargain struck for his benefit, does not comport with due process, and negatively impacts the basic fairness of the criminal justice system," DiFiore wrote.

The appeal was brought by Mouhamed Thiam, who was represented before the Court of Appeals by Will Page, an attorney with the Legal Aid Society.

"This decision upholds the longstanding protection in misdemeanor cases permitting our clients to challenge on appeal improperly inflated criminal charges brought by prosecutors," Page said. 

"It also builds on the recently enacted pretrial criminal justice reforms designed to ensure that our clients and other New Yorkers are not coerced into taking plea deals that do not fairly reflect their conduct," he continued.

Thiam pleaded guilty three years ago to possessing oxycodone after he was arrested in midtown Manhattan.

The police officer claimed he saw Thiam holding marijuana in public view, and pursued him for an arrest. A second bag of marijuana was found in Thiam's pocket, along with pills the officer had identified as oxycodone.

For both the marijuana and oxycodone, the officer wrote in the complaint against Thiam that he'd identified the substances based on his experience and training in law enforcement. 

He identified the marijuana based on its smell and packaging, and said he knew what oxycodone looked like based on his experience and prior drug arrests. No testing was done on the pills to confirm they were oxycodone, according to the record.

Thiam was charged with criminal possession of a controlled substance in the seventh degree over the pills, a class A misdemeanor. He was also charged with a class B misdemeanor for possessing marijuana in a public place, and faced a violation for possession alone. 

At his arraignment, which was held the same day as his arrest, Thiam's attorney argued that the highest charge—the class A misdemeanor from the pills—was legally insufficient because prosecutors hadn't done enough to establish the pills were actually oxycodone.

Thiam's attorney also argued that there wasn't adequate information to show he had displayed marijuana in "a public place," which had allowed prosecutors to charge Thiam with the class B misdemeanor on top of the violation for possession.

But rather than ask for the complaint to be thrown out based on those claims, Thiam's attorney requested that the judge sentence him to time served. Criminal Court Justice Lyle Frank granted the request.

Thiam, as part of the deal, agreed to plead guilty to the top count of criminal possession of oxycodone, even though his attorney had alleged the charge wasn't sufficient. 

DiFiore wrote in her opinion that allowing Thiam to plead guilty to the highest charge against him, even though it was alleged to be deficient, was an unfair exchange between him and the prosecution. The same would be true for any defendant, she wrote.

"A guilty plea to a defective top count of a multi-count misdemeanor complaint, without an equal grade offense properly pleaded, lacks the hallmarks of essential fairness and amounts to an unfair bargain," DiFiore wrote.

Thiam appealed the outcome of his arraignment to the Appellate Term, First Department, which threw out all charges against him. The appellate court ruled that Thiam couldn't be held to the charge over the pills because the officer's allegations weren't sufficient.

His conviction was reversed by the First Department, which also dismissed the complaint. Rather than sending the case back to the trial court, the appellate court threw it out completely, saying there wouldn't be any point since Thiam had served his sentence.

Unlike two of the court's other judges, who signed onto a separate concurring opinion, DiFiore wrote that Thiam's case could have been sent back to the trial court for a do-over. The case, she said, could be reset to allow the court to accept a guilty plea, instead, for the lower charge.

DiFiore preferred that result, she said, to avoid a trend of defendants choosing to plead guilty to a higher charge, only to then appeal their conviction in hopes of a dismissal, like Thiam.

"To avoid such gamesmanship, the proper corrective remedy, plainly afforded by CPL 470.55, is a remittal to the trial court for further proceedings on the accusatory instrument," DiFiore wrote.

That same opinion was held by the three judges who dissented from the court's majority opinion Tuesday. Associate Judge Leslie Stein, who wrote the dissent, said the case should have been sent back to the trial court—but also claimed Thiam's plea was lawful.

There are situations, she wrote, where a defendant may choose to plead guilty to a higher charge rather than take their chances going forward in a criminal case, Stein wrote. That's sometimes the case for immigrant defendants who want to avoid triggering deportation.

"This court should not turn a blind eye to the fact that we now live in an age of increasing civil collateral consequences flowing from criminal convictions—such as deportation—that may make pleas to higher grade misdemeanors desirable for defendants," Stein wrote.

The majority's opinion Tuesday destroyed that option in the future for immigrant defendants, Stein wrote.

The Manhattan District Attorney's Office, which prosecuted the case, declined to comment on the decision Tuesday.

DiFiore and Associate Judges Jenny Rivera, Eugene Fahey and Rowan Wilson signed onto the majority's memorandum. Wilson joined DiFiore on her opinion, while Rivera joined Fahey on a separate opinion.

Associates Judges Michael Garcia and Paul Feinman joined Stein on the dissent.

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