Constitutional Law Criminal Law Litigation

Time for NY to Allow “NoLo Contendre” Pleas

Several states around the country, most notably California, Florida and Texas, permit a person charged with a crime to enter a plea of “NoLo Contendre” which is Latin for “I Do Not Contest The Matter.” This allows the accused to resolve his criminal matter by a plea bargain without admitting guilt of the crime. Its a middle ground usually offered where the evidence could go either way at trial and a defendant does not want to risk everything with a jury.

New York, however, has no such provision in its criminal procedure law. While NY does allow for something similar, called a Serrano or Alford plea, named after the State and Federal cases that allow for them, those pleas are rare indeed. Most judges in NY will not accept them as NY Judges like to adhere to the English commonwealth system of two permissible pleas – guilty or not guilty.

But there’s lots of room between guilty and not guilty. Those who are innocent of the crime for which they are charged are often put between a rock and a hard place: (1) being forced to go to trial when there is circumstantial evidence that is sufficient to convict you (the facts make you look guilty) or (2) admitting guilt to a crime you did not commit just to avoid the possibility of jail. DNA evidence has established that innocent people will plead guilty to get a reduced sentence and any NY practitioner will tell you that innocent people do take pleas.

The US Supreme Court recently upheld the right to effective lawyering in the plea bargaining process, a long overdue recognition of the importance and prevalence of plea-bargaining in the criminal justice system. It therefore makes sense to make this third plea bargain a more-available option.

It could be limited to crimes that did not involve a purported confession by the defendant or where there is other direct evidence linking the defendant to the crime, like an identification by an eyewitness. While both confessions and identifications happen in cases involving the innocent as well, at least the case is not circumstantial and the defendant is entitled to a hearing to contest the validity of the ID and confession.

The problem and need for a solution stems from certain plea offers being only good “pre-indictment” or “before jury selection.” In NY, the defendant charged with a felony sees almost no discovery until jury selection so that he must make a decision on taking a plea based on very little information. DAs often take advantage of this situation by offering a generous plea bargain on a weak case – a misdemeanor or lower say on a felony charge, or no jail on a violent crime that carries a maximum of 15 years upon conviction.

These situations put the accused in a terrible quandary – do they risk everything on the jury system and their lawyer’s competence? Or do they admit to something they didn’t do for the sake of being able to get on with their lives and avoid incarceration? While the innocent are the most damaged by this Hobson’s Choice, many more defendants who are charged with crimes for which there is scant proof face the same dilemma. Try to establish that the DA failed to meet the burden of proof or walk out of the door with just paying a fine?

A nolo contendere plea has the same immediate effects as a plea of guilty, but may have different residual effects or consequences in future actions. For instance, a conviction arising from a nolo contendere plea is subject to any and all penalties, fines, and forfeitures of a conviction from a guilty plea in the same case, and can be considered as an aggravating factor in future criminal actions. However, unlike a guilty plea, a defendant in a nolo contendere plea is not be required to admit the underlying facts of the charges. They merely state that they do not contest the charges or that they see that there is sufficient evidence that could cause a jury to convict them of the charges. This means that a nolo contendere conviction typically may not be used to establish either negligence per se, malice, or whether the acts were committed at all in later civil proceedings related to the same set of facts as the criminal prosecution.

The complainants could still have their day in civil court to try and prove the underlying facts but the criminal justice system and the accused would not be forced to proceed through a costly, lengthy and risky trial. I think the NY State Legislature should examine making a Serrano or nolo plea a more regular part of the criminal justice system. Providing this third avenue of plea would serve the ends of justice and reduce the risk that people aren’t forced to go to trial unnecessarily.

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