The New York Criminal Law Blog

Bodega Man Pled Guilty to Underage Sale; Can He Withdraw Plea?

Ismael Duran knows the rules of selling alcohol to underage drinkers. So when the 44-year-old father of three, and recent immigrant from the Dominican Republic, was working the cash register at a Brooklyn Bodega and an 18-year-old tried to buy a Smirnoff Ice, he was turned away, reports the New York Daily News. Not because of the choice of a stereotypically feminine drink, mind you, but because Duran was doing his job.

He was arrested anyway.

Police claim that after the 18-year-old undercover cop was rejected, the cop made a deal with a 51-year-old customer, Stanfiel Collymore, to purchase the alcohol for him. Police say that the deal was done in store, within earshot of Duran.

At the advice of his then-counsel, Duran pled guilty and paid a $120 fine so that he could go home. He was afraid that he would have to go to Rikers Island if he didn't pay right away.

Shortly thereafter, Duran had the ultimate "duh" moment, when he realized that there was a surveillance camera in the store, watching every move. A review of the tape shows that he did everything he was supposed to do, including rejecting the underage purchaser, and that he was busy with other customers when the side-deal went down.

Ismael Duran is now attempting to withdraw his guilty plea. Prosecutors are reviewing the tape and considering whether to vacate his plea or not. However, it is not the prosecutor's decision. They can make a recommendation, but it is the judge's choice whether or not to vacate a plea. And they hate vacating pleas.

Vacating, or withdrawing, a guilty plea that has already been finalized is an extremely difficult matter. There are only a few reasons why a judge would actually grant such a motion, including evidence of innocence, fraud or mistake in entering the plea knowingly, or ineffective assistance of counsel.

For fraud or mistake in entering the plea knowingly, there must be some evidence of fraud on the part of the prosecutor or the police officers, or the defendant must have not understood the consequences of the plea. An example is where the judge misreads the sentence in court and the defendant takes the deal.

Ineffective assistance of counsel is usually a dead end. It is very difficult to prove that a lawyer is inept. There are cases where the lawyer was drunk and asleep during trial and the court still didn't find ineffective assistance of counsel.

Finally, actual innocence, which we may have here, is the strongest ground to stand on. For this, you need pretty incontrovertible evidence of innocence. You essentially have to clearly prove that you are innocent, since you have already admitted that you are guilty in court.

For Ismael Duran, the presence of the surveillance camera will probably set him free. For most people who enter a plea of guilty, there is no way whatsoever to withdraw the plea. He is lucky that the camera caught the whole incident on tape, as otherwise, he would have no way to fight the charges.

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