| People v Kitt |
| 2013 NY Slip Op 00510 [102 AD3d 984] |
| January 30, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Zachary Kitt, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A.Grob of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Murphy, J.), rendered October 29, 2010, convicting him of vehicular assault in the firstdegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the court's plea allocution was inadequate in severalrespects. He did not, however, move pursuant to CPL 220.60 (3) to withdraw his guiltyplea, and nothing on the record either negated an essential element of the crime to whichhe pleaded guilty or cast significant doubt on his guilt. Inasmuch as the Court of Appealshas held that, in these circumstances, preservation is required, the defendant's claims donot present questions of law for our review (see CPL 470.05 [2]; People vLopez, 71 NY2d 662, 665 [1988]; People v Adams, 67 AD3d 819, 819 [2009]; cf. People v Mox, 20 NY3d936 [2012]).
Under the circumstances of this case, we decline to review the defendant's claim inthe interest of justice, although we of course agree with our dissenting colleague that"plea allocutions should not be taken lightly and should not be performed in aperfunctory manner." Here, the defendant received a very favorable plea arrangement inthe face of strong evidence of his guilt of the various crimes charged in the indictment.There was no question that it was the defendant who caused serious injury to thecomplainant by the use of his motor vehicle. Moreover, the defendant and his attorneywere clearly aware of the strength or weakness of their claim regarding suppression ofthe breathalyzer results (see People v Adams, 67 AD3d at 819). The defendantwas aware that he could proceed to trial and call witnesses on his own behalf, butnevertheless opted to forego exercising that right in exchange for the certainty of alenient sentence. Dillon, J.P., Balkin, and Leventhal, JJ., concur.
[*2]Hall, J., dissents, and votes to reverse thejudgment, as a matter of discretion in the interest of justice, to vacate the plea of guilty,and to remit the matter to the Supreme Court, Kings County, for further proceedings onthe indictment: I agree with the majority that the defendant's contention challenging thecourt's plea allocution is unpreserved for appellate review (see CPL 470.05 [2]).However, I must respectfully dissent because, in my view, this is an appropriate case forthis Court to exercise its interest of justice jurisdiction to reach the defendant'smeritorious contention (see CPL 470.15 [6]).
It is well established that "when a criminal defendant waives the fundamental right totrial by jury and pleads guilty, due process requires that the waiver be knowing, voluntaryand intelligent" (People vHill, 9 NY3d 189, 191 [2007], cert denied 553 US 1048 [2008];see NY Const, art I, § 6). To this end, a court has the constitutional duty toensure that a defendant, before pleading guilty, "has a full understanding of what the pleaconnotes and of its consequence[s]" (Boykin v Alabama, 395 US 238, 244[1969]; see People vVickers, 84 AD3d 627 [2011]).
The plea colloquy in this case was virtually nonexistent. The court failed to advisethe defendant that he had a right to a trial by jury, that he had a right to confront thewitnesses against him, and that he had a right against compulsory self-incrimination.These are fundamental rights that a defendant must be apprised of, on the record, beforepleading guilty (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]).Furthermore, defense counsel's involvement at the plea proceeding was minimal andthere is no basis in the record to conclude that the defendant was actually aware of therights he was surrendering. Under these circumstances, the record does not show that theplea was entered into knowingly, voluntarily, and intelligently and, thus, the plea isinvalid.
While the defendant did not preserve his challenge to the voluntariness of his plea(see People v Lopez, 71 NY2d 662 [1988]), in my view, this issue should bereached in the exercise of this Court's interest of justice jurisdiction, since the pleaallocution was so " 'woefully deficient' " (People v Vickers, 84 AD3d at 629,quoting People v Colon, 42AD3d 411, 411 [2007]). Where, as here, a court completely fails in its duty to ensurethat a defendant is aware of the important rights he or she is waiving by pleading guilty,it cannot be said that a defendant genuinely had a fair opportunity to raise a challenge tothe voluntariness of his or her plea (cf. People v Louree, 8 NY3d 541 [2007]). Thisconsideration provides a further basis for my conclusion that the exercise of this Court'sinterest of justice jurisdiction is warranted.
I note that there are nonfrivolous issues to be litigated at trial. The defendant filed apretrial motion, inter alia, to suppress results from a breathalyzer test on the ground thathe had not consented to taking the test. The People asserted that a videotape made at thetime of the test proved that the defendant consented to taking the test. The SupremeCourt deferred decision on the motion until trial, and noted that the People would have to"lay a proper foundation for the admissibility of the test results prior to thecommencement of trial, limited to the issue of the defendant's consent, outside thepresence of the jury." The results of the breathalyzer test are a critical part of the People'scase, since the top count of the indictment charged the defendant with vehicular assaultin the first degree (see Penal Law § 120.04 [1]). Moreover, although thedefendant has been released from prison, his conviction is still on his record. Therefore,the defendant still has good reason to challenge the admissibility of the breathalyzer testresults and to hold the People to their burden of proof at trial.
By pleading guilty, a defendant is giving up important, fundamental rights. As aresult, plea allocutions should not be taken lightly and should not be performed in aperfunctory manner. It is the court's responsibility to ensure that a defendant is madeaware of his or her important, fundamental rights before pleading guilty.
In sum, I believe that this is an appropriate case for this Court to exercise its interestof justice jurisdiction to reach the defendant's meritorious contention regarding thevoluntariness of his plea. Accordingly, on that basis, I respectfully dissent and vote toreverse the judgment.