On October 8, 1998, a grand jury indicted Petitioner Kendall Francois on eight counts of first degree murder, eight counts of second degree murder, and one count of attempted second degree assault. Petitioner pled not guilty at his arraignment. Petitioner's arraignment began the 120-day period during which the District Attorney had the statutory authority to serve a notice of intent to seek the death penalty. On December 22, 1998, before the District Attorney filed a notice of intent, the Court of Appeals decided Matter of Hynes v. Tomei, 92 N.Y.2d 613, which held that New York's capital punishment statute was defective because only jury trials could authorize the death penalty, while defendants could avoid the death penalty by pleading guilty to the same offense. The Court thus struck the provisions surrounding the guilty plea that created this inconsistency. The day after the Court decided Matter of Hynes v. Tomei, Petitioner made an unscheduled appearance and offered to plead guilty to the entire indictment. The District Attorney opposed the plea and filed the death penalty notice. County Court denied Petitioner's request to plead guilty.

Petitioner then went before the Appellate Division with the instant C.P.L.R. article 78 mandamus, asking for an order by the court to accept the guilty plea. The Appellate Division dismissed the mandamus because Petitioner lacked a clear legal right to the claim. The Court of Appeals affirmed.

Whether Petitioner has an unrestricted right to plead guilty to an entire indictment charging him with capital murder before the District Attorney has served a notice of intent to seek the death penalty or before the expiration of the time period for such notice.

No. Petitioner does not hold an unrestricted right to plead guilty in order to in fact deprive the District Attorney of the opportunity to file a notice of intent to seek the death penalty.

State of the Law Before Francois

In Hynes v. Tomei, 92 N.Y.2d 613, the Court examined the constitutionality of the 1995 New York death penalty statute under United States v. Jackson, 390 U.S. 570 (1968). In Jackson, the U.S. Supreme Court found an inconsistency in the Federal Kidnapping Act in that it only allowed capital punishment on the recommendation of a jury, whereas a defendant convicted of the same offense on either a guilty plea or by a judge was not eligible for the death penalty. The Court in Hynes found that the 1995 statute had a similar infirmity to that found in Jackson, in that it allowed a defendant to avoid a death sentence by pleading guilty. The statute also permitted a defendant to make a guilty plea when the sentence was life imprisonment without parole. Furthermore, the Court decided that a defendant could not exercise the right to plead guilty to capital murder in the first degree before the 120-day period expired, during which time the district attorney could serve a notice of intent to seek the death penalty.

Effect of Francois on Current Law

The Court held that Criminal Procedure Law, CPL „ 220.10(2) and CPL 220.60(2) do not grant capital murder defendants an absolute right to plead guilty before completion of the statutory period provided for in CPL 250.40. This statutory period grants the District Attorney the authority to seek the death penalty. As a matter of interpretation, CPL 250.40 preempts CPL 220.10(2) and 220.60(2) because it is both more recent and more specific. This decision preserves the statutory rights granted to the District Attorney by CPL 250.40 to seek the death penalty. Future capital murder defendants will be unable to escape the death penalty by filing their guilty pleas before the District Attorney files a death penalty notice.

Unanswered Questions

This case specifically says that there is no unrestricted right to plead guilty while faced with a possibility of the death penalty. Is the holding specific to capital murder offenses only, or might it apply to other capital crimes?

What would happen if a defendant entered a guilty plea after the expiration of the statutory time period for the filing of the death penalty notice, but before the District Attorney actually files such a notice?

Is Jackson, dealing with a kidnapping statute, directly applicable to Hynes?

Survey of the Law in Other Jurisdictions

States have made various attempts to address the noted "Jackson infirmity" that has caused the New York Court of Appeals to strike down the offending plea provisions of CPL 220.10(5)(e) and CPL 220.30(3)(b)(vii) in an effort to preserve the statutory death penalty scheme generally.

The Virginia Court of Appeals observed in Graham v. Commonwealth that while the U.S. Constitution does not guarantee a criminal defendant an absolute right to have his guilty plea accepted by the court, state legislatures may afford such a right by statute or otherwise. 397 S.E.2d 270 at 272 (citing North Carolina v. Alford, 400 U.S. 25 at 38, n. 11 (1970)). In Graham, the court determined that Art. 1, Sec. 8 of the Virginia State Constitution confers an unrestricted right that "[i]n criminal cases, the accused may plead guilty." Id. (reversing conviction and remanding for new trial, where trial court had inappropriately rejected defendant's mid-trial offer to plead guilty on drug charges).

Likewise, in State v. Martin, 614 P.2d 164 (Wash. 1980), the Washington Supreme Court preserved a capital defendant's right to plead guilty, pursuant to CrR 4.2(g). In a concurring opinion, Judge Horowitz deemed the state's death penalty statute (Wash. Rev. Code (RCW) „ 10.94, now RCW „ 10.95) to be invalid under United States v. Jackson, 390 U.S. 570 (1968), but he concurred with the majority's result. The judge noted that "adoption of the State's assertion that it can prevent the defendant from pleading guilty in effect creates a governmental 'right' to jury trial which the law has never recognized." State v. Martin, 614 P.2d at 169 (Horowitz, J., concurring).

In keeping with the understanding that it is the defendant's, not the government's, right to trial by jury that the Sixth Amendment of the U.S. Constitution protects, such states as New Hampshire, New Jersey, Washington, and Massachusetts revoked their death penalty statutes in the wake of the Supreme Court's decision in Jackson, rather than eviscerate their state's plea-bargaining provisions. See State v. Johnson, 595 A.2d 498 (N.H. 1991); State v. Funicello, 286 A.2d 55 (N.J. 1972); State v. Frampton, 627 P.2d 922 (Wash. 1981); Commonwealth v. Colon-Cruz, 470 N.E. 2d 116 (Mass. 1994). (Among these states, all except Massachusetts have since reinstated the death penalty.)

Arkansas, New Jersey, and North Carolina are among those states which, like New York, do not recognize an absolute right to plead guilty. See Hayes v. State, 660 S.W.2d 648, 654 (Ark. 1983), cert. denied, 465 U.S. 1051 (1984); State v. Belton, 286 A.2d 78, 109-110 (N.J. 1972); Garner v. State, 174 S.E.2d 92, 123 (N.C. 1970).

In California, where, as in New York, the prosecutor has the power to make the discretionary decision whether to seek the death penalty, a defendant's right to plead guilty is subject to the requirement of his counsel's consent. See California Penal Code „ 1018.

For additional information on the death penalty, see the following web sites: Academic Info: Law & Legal Research - Criminal Law; Criminal Law Links - Death Penalty (State of Kentucky web site link). Cornell's Legal Information Institute "Law About" Page.