| People v Aleman |
| 2007 NY Slip Op 06919 [43 AD3d 756] |
| September 25, 2007 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v AngelAleman, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Vincenzo S. Lippiello of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered December 13,2005, convicting defendant, upon his guilty plea, of conspiracy in the second degree andsentencing him to a term of 1
Defendant was charged with five conspiracy and solicitation counts arising out of his allegedplan to have Nellie Martinez killed because, after a 2½-year acquaintanceship, she spurnedhis advances. During jury selection, defendant pleaded guilty to one count of conspiracy in thesecond degree in full satisfaction of the indictment in exchange for a promised sentence of1
Despite defendant's numerous assertions of innocence and various instances of refusal toadmit crucial facts when asked, the court relentlessly pursued its efforts to obtain a guilty plea,ultimately succeeding in having defendant admit, by answering "yes," that he gave $100 to anundercover officer for the purpose of having the undercover kill Martinez. On no less than threeoccasions, defense counsel, frustrated at defendant's adamant refusal to admit anything of aninculpatory nature, asked that the matter proceed to trial. On the last occasion, counsel stated,"Judge, you can't take this plea . . . . Every time you ask him a question, his firstresponse is, 'No, I didn't do it' or 'No, I didn't give the money.' It's my opinion that he's claiminghe didn't do this. If he didn't do this, then we have to go to trial."
Although defendant never moved to withdraw his guilty plea, this plea colloquy falls withinthe exception carved out by the Court of Appeals in People v Lopez (71 NY2d 662, 666[1988]), which allows appellate review of the sufficiency of a plea allocution despite the absenceof such a motion, where the recitation of facts elicited during the plea allocution "clearly castssignificant doubt upon the defendant's guilt or otherwise calls into question the voluntariness ofthe plea." Under such circumstances, if the court fails to conduct such an inquiry, an appellate[*2]court is not precluded from vacating the plea on direct appeal(id.). Defendant's statements throughout the plea proceeding called his guilt into questionand suggested he was not pleading guilty voluntarily, but rather out of necessity. His statementthat he was "not exactly guilty" and that he was accepting the plea because he was "not going tospend ten years in jail when I'm innocent" suggested his reluctance to admit guilt. At anotherpoint, defendant denied any criminal activity at the crime location, stating he was there topurchase a car. In none of these instances did the court conduct any inquiry other than to reiteratethe point that without an admission of guilt there could be no plea. Reviewing the pleaproceeding as a whole, it is clear that the court failed to exercise the diligence required to assurethat the plea was knowing, intelligent and voluntary.
In any event, aside from the deficient factual allocution, the guilty plea was not knowing andvoluntary. With the exception of advising defendant that he had the right to a jury trial if he didnot want to plead guilty and that he was waiving the right to appeal, the court failed to informhim, a 27 year old with no prior criminal history, of any of the rights he was waiving by his pleaof guilty (see People v Colon, 42AD3d 411 [2007]). While it is "well established that there is no uniform mandatorycatechism which the court must elicit to render a defendant's plea appropriate" (People vRamirez, 159 AD2d 392, 393 [1990], lv denied 76 NY2d 863 [1990]), "[a] trial courthas the constitutional duty to ensure that a defendant, before pleading guilty, has a fullunderstanding of what the plea connotes and its consequences" (People v Ford, 86 NY2d397, 402-403 [1995]). As this Court has explained, "the court must advise the defendant, interalia, of the constitutional rights he would be waiving by pleading guilty" (People v Bracey, 24 AD3d 363,364 [2005]); there must be a showing in the record that the defendant "intelligently andunderstandingly rejected [his constitutional rights]" (People v Harris, 61 NY2d 9, 17[1983], quoting Carnley v Cochran, 369 US 506, 516 [1962]). Since the court failed toinform defendant of single right he was waiving, the record fails to reflect that defendant's pleawas entered knowingly and intelligently.
Inasmuch as the guilty plea was improperly entered, the question of the validity of the waiverof appeal becomes academic. Nevertheless, were we to reach the issue, we would find the waiverto be defective as well. There was no explanation whatsoever regarding the waiver. As thesentencing minutes make clear, defendant had no understanding of its import. His only statementat sentence was his announced plan to change attorneys and appeal. Concur—Mazzarelli,J.P., Sullivan, Buckley, Sweeny and Catterson, JJ.