| People v Vences |
| 2015 NY Slip Op 01196 [125 AD3d 1050] |
| February 11, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJose L. Vences, Appellant. |
Jane M. Bloom, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda,J.), rendered February 1, 2013, convicting defendant upon his plea of guilty of the crimeof burglary in the second degree.
Defendant entered a guilty plea to burglary in the second degree in satisfaction of anindictment that also charged petit larceny. No plea agreement was reached because thePeople were unwilling to recommend defendant, age 16 at the time, for youthful offenderstatus (see CPL 720.10). County Court imposed a prison term of five years, withfive years of postrelease supervision, and denied youthful offender status. Defendantnow appeals.
A review of the record supports defendant's contention that his guilty plea andwaiver of appeal were not knowing, voluntary and intelligent. As a threshold matter, theterms under which defendant was entering a guilty plea were not clearly stated prior tothe plea allocution, County Court misstated the minimum term of postrelease supervision(see Penal Law § 70.45 [2] [f]), and defendant was not advised ofthe maximum potential sentence (see People v Brown, 77 AD3d 1053, 1054 [2010]). Whilethe People stated that defendant would be entering an "open" guilty plea to both countsof the indictment without an appeal waiver, which defendant was entitled to do "as amatter of right" (CPL 220.10 [2]), upon inquiry from County Court defense counselstated, without explanation or discussion, that defendant would be waiving his right toappeal. The court then reiterated that there was no plea agreement. After defendant's pleaallocution to the burglary count only, the People changed course and indicated thatdefendant [*2]would not be required to enter a plea to theremaining count and the court stated that the plea satisfied that charge. Thus, the recorddoes not reflect that defendant was accurately advised, prior to the plea allocution, of hisrights, options or the terms of his plea.
Moreover, "[w]hen a defendant opts to plead guilty, he [or she] must waive certainconstitutional rights—the privilege against self-incrimination and the rights to ajury trial and to be confronted by witnesses" (People v Tyrell, 22 NY3d 359, 365 [2013], citingBoykin v Alabama, 395 US 238, 243 [1969]). While there is no "uniformmandatory catechism" (People vAlexander, 19 NY3d 203, 219 [2012] [internal quotation marks and citationomitted]), and the court need not "specifically enumerate all the rights" implicated(People v Harris, 61 NY2d 9, 16 [1983]), here, the only constitutional rightreferred to was the right to a jury trial. We cannot conclude that defendant's guilty pleawas knowing, voluntary and intelligent as there was neither "an affirmative showing onthe record that defendant waived his constitutional rights" (People v Tyrell, 22NY3d at 365 [internal quotation marks and citation omitted]), nor any indication that he"consulted with his attorney about the constitutional consequences of a guilty plea"(id.; see People v Fiumefreddo, 82 NY2d 536, 543 [1993]; comparePeople v Ocasio-Rosario, 120 AD3d 1463, 1464 [2014]).[FN*]
We also note, with regard to the oral appeal waiver, that County Court did notadequately convey "that the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty" but, rather, improperly lumped those rightstogether (People v Lopez, 6NY3d 248, 256 [2006]; seePeople v Bradshaw, 18 NY3d 257, 264 [2011]). Although the record contains awritten appeal waiver dated the same day as the plea proceedings, there was no "attemptby the court to ascertain on the record an acknowledgment from defendant that he had, infact, signed the waiver or that, if he had, he was aware of its contents" (People vCallahan, 80 NY2d 273, 283 [1992]; see People v Patterson, 119 AD3d 1157, 1158 [2014],lv denied 24 NY3d 1046 [2014]). In light of the foregoing, defendant's remainingcontentions need not be addressed.
Peters, P.J., Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isreversed, as a matter of discretion in the interest of justice, and matter remitted to theCounty Court of Sullivan County for further proceedings not inconsistent with thisCourt's decision.
Footnote *:While defendant did notmove to withdraw his plea on this ground, the Court of Appeals has suggested that a"Boykin rights" error "could also be viewed as a mode of proceedings error forwhich preservation is not required" (People v Tyrell, 22 NY3d at 364). In anyevent, we exercise our interest of justice jurisdiction to reverse the judgment (seeCPL 470.15 [3] [c]).