| People v Klinger |
| 2015 NY Slip Op 04682 [129 AD3d 1115] |
| June 4, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vHarold Klinger, Appellant. |
Orseck Law Offices, PLLC, Liberty (Gerald Orseck of counsel), for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Sullivan County(LaBuda, J.), rendered April 22, 2014, convicting defendant upon his plea of guilty ofthe crime of attempted criminal possession of a weapon in the second degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to attemptedcriminal possession of a weapon in the second degree and waived his right to appeal. Theplea agreement contemplated that defendant would be sentenced to a split sentence of sixmonths in jail and five years of probation, with three months of additional jail time to beimposed upon his guilty plea to a separate charge of driving while intoxicated. Defendantthereafter moved to withdraw his guilty plea. County Court denied the motion, findingthat defendant understood the rights that he was giving up by pleading guilty and hadvoluntarily elected to do so. County Court imposed the agreed-upon sentence, anddefendant now appeals.
Defendant argues that his plea was invalid because County Court failed to advisehim of the rights that he would be waiving by pleading guilty, including "the privilegeagainst self-incrimination and the rights to a jury trial and to be confronted by witnesses"(People v Tyrell, 22 NY3d359, 365 [2013], citing Boykin v Alabama, 395 US 238, 243 [1969]; see People v Vences, 125AD3d 1050, 1051 [2015]). This argument is unpreserved given defendant's failureto advance it in his motion to withdraw his plea (see People v Devault, 124 AD3d 1140, 1141 [2015], lvdenied 25 NY3d 989 [2015]; People v Escalante, 16 AD3d 984, 984-985[*2][2005], lv denied 5 NY3d 788 [2005]). While it issomewhat unclear as to the precise characterization of this type of error (see People vTyrell, 22 NY3d at 364), it is undoubtedly one serious enough to warrant reversal inthe interest of justice (see People v Vences, 125 AD3d at 1051 n; but see People v Jackson, 123AD3d 634, 634-635 [2014]). Inasmuch as this argument further relates to thequestion of whether defendant knowingly, intelligently and voluntarily elected to give uphis rights and plead guilty (see People v Tyrell, 22 NY3d at 365-366; Peoplev Fiumefreddo, 82 NY2d 536, 543-544 [1993]), it survives even a valid appealwaiver (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Miner, 120 AD3d1449, 1449 [2014]).
Turning to the merits, a trial court is neither required "to specifically enumerate allthe rights to which the defendant was entitled [or] to elicit . . . detailedwaivers before accepting [a] guilty plea" (People v Tyrell, 22 NY3d at 365[internal quotation marks and citation omitted]), nor engage in "a uniform mandatorycatechism of pleading defendants" (People v Alexander, 19 NY3d 203, 219 [2012] [internalquotation marks and citation omitted]). There must, however, "be 'an affirmativeshowing on the record' that the defendant waived his [or her] constitutional rights"(People v Tyrell, 22 NY3d at 365, quoting People v Fiumefreddo, 82NY2d at 543; see People vMoore, 24 NY3d 1030, 1031-1032 [2014]). County Court made no effort toexplain the rights that defendant was giving up by pleading guilty, making nothing morethan a passing reference to them when asking if defendant had "any questions." CountyCourt further failed to establish that "defendant consulted with his attorney about theconstitutional consequences of a guilty plea," instead making a vague inquiry intowhether defendant had spoken to defense counsel regarding "the plea bargain" and "thecase" (People v Tyrell, 22 NY3d at 365; compare People v Ocasio-Rosario, 120 AD3d 1463, 1464[2014]). Inasmuch as the record does not demonstrate defendant's understanding orwaiver of his constitutional rights, we reverse the judgment of conviction, therebyvacating the guilty plea, and remit so that County Court can proceed with the requestedpretrial hearings.
McCarthy, J.P., Lynch and Clark, JJ., concur. Ordered that the judgment is reversed,as a matter of discretion in the interest of justice, and matter remitted to the County Courtof Sullivan County for further proceedings not inconsistent with this Court'sdecision.