| People v Mones |
| 2015 NY Slip Op 06174 [130 AD3d 1244] |
| July 16, 2015 |
| Appellate Division, Third Department |
[*1](July 16, 2015)
| The People of the State of New York, Respondent, vAdam Mones, Appellant. |
John Ferrara, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Sullivan County(LaBuda, J.), rendered April 12, 2012, (1) convicting defendant upon his plea of guilty ofthe crime of burglary in the second degree and of violating probation, and (2) whichrevoked defendant's probation and imposed a sentence of imprisonment.
Pursuant to a negotiated agreement that included a waiver of appeal, defendantpleaded guilty to a superior court information charging him with burglary in the seconddegree and admitted to violating probation. He was sentenced in accordance therewith toan aggregate prison term of 8
Initially, we find that defendant's waiver of his right to appeal was not valid. Duringthe plea colloquy, County Court failed to "adequately convey 'that the right to appeal isseparate and distinct from those rights automatically forfeited upon a plea ofguilty' " (People vVences, 125 AD3d 1050, 1051 [2015], quoting People v Lopez, 6 NY3d248, 256 [2006]; see Peoplev Bradshaw, 18 NY3d 257, 264 [2011]). A written waiver executed bydefendant the same day as the plea colloquy suffers from the same deficiency and, in anyevent, "there was no 'attempt by the court to ascertain on the record an acknowledgmentfrom defendant that he had, in fact, signed the waiver or that, if he had, he was aware ofits contents' " (People v Vences, 125 AD3d at 1051-1052, quotingPeople v Callahan, 80 NY2d 273, 283 [1992]).
[*2] Turning to defendant's guilty plea, County Court alsofailed to properly inform defendant of his trial rights. Although defendant failed toadvance this issue via an appropriate postallocution motion, the Court of Appeals hassuggested that a trial court's failure to properly inform a defendant as to his trial rightsduring a plea colloquy "could . . . be viewed as a mode of proceedings errorfor which preservation is not required" (People v Tyrell, 22 NY3d 359, 364 [2013]). In any event,we exercise this Court's interest of justice jurisdiction to reverse the judgment (see People v Klinger, 129AD3d 1115, 1116 [2015]; People v Vences, 125 AD3d at 1051 n 1). Werecognize that a trial judge is not required to "specifically enumerate all the rights towhich the defendant was entitled [or] to elicit . . . detailed waivers beforeaccepting [a] guilty plea" (People v Tyrell, 22 NY3d at 365 [internal quotationmarks and citation omitted]), and there is no "uniform mandatory catechism of pleadingdefendants" (People vAlexander, 19 NY3d 203, 219 [2012] [internal quotation marks and citationomitted]). However, there must be " 'an affirmative showing on the record' thatthe defendant waived his [or her] constitutional rights" (People v Tyrell, 22NY3d at 365, quoting People v Fiumefreddo, 82 NY2d 536, 543 [1993]; see People v Moore, 24 NY3d1030, 1031 [2014]).
Here, the plea colloquy took place over a two-day period. On the first day, after theprosecutor recited the plea terms, County Court informed defendant that he would be"giving up [his] rights to proceed to a trial [and] to appeal." Defense counsel thenrequested additional time to speak with defendant, and the case was adjourned until thefollowing morning. However, when the proceedings resumed, there was no affirmativeindication that defendant had actually "consulted with his attorney" or that any suchconsultation during the adjournment was "about the constitutional consequencesof a guilty plea" (People v Tyrell, 22 NY3d at 365 [emphasis added]; seePeople v Vences, 125 AD3d at 1051; compare People v Ocasio-Rosario, 120 AD3d 1463, 1464[2014]). Instead, the prosecutor again recited the plea terms and County Court simplyasked defendant if anyone was forcing him to give up "those rights." Defendantresponded in the negative and the court then stated, "Trial rights, grand jury right,appellate rights, et cetera?" to which defendant again replied "no." No explanation of theaforementioned rights or the consequences of defendant's waiver was provided. Because"[p]resuming waiver from a silent record is impermissible" (Boykin v Alabama,395 US 238, 242 [1969] [internal quotation marks and citation omitted]; see People vTyrell, 22 NY3d at 365-366), and this record is silent as to whether defendant wasinformed of the constitutional trial rights that he was giving up, there is insufficientevidence to establish an adequate waiver of such rights (see People v Tyrell, 22NY3d at 365-366; People v Klinger, 129 AD3d at 1116-1117; People vVences, 125 AD3d at 1051). In light of the foregoing, defendant's remainingcontentions are academic.
Rose and Clark, JJ., concur.
Devine, J. (dissenting). We agree with our colleagues that defendant did not executea valid waiver of his right to appeal. Because we are persuaded that the plea itself wasentered into in a knowing, voluntary and intelligent manner, however, we dissent.
County Court was indeed obliged to advise defendant of the rights that he would beforgoing by his guilty plea, including "the privilege against self-incrimination and therights 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]). In that regard, a trial court is not required "to specificallyenumerate all the rights to [*3]which the defendant wasentitled [or] to elicit . . . detailed waivers before accepting [a] guilty plea"(People v Tyrell, 22 NY3d at 365 [internal quotation marks and citationsomitted]), nor is there "a uniform mandatory catechism of pleading defendants" (People v Alexander, 19 NY3d203, 219 [2012] [internal quotation marks and citation omitted]). It is accordinglywell settled "that a detailed articulation and waiver of the three rights mentioned inBoykin [are] not constitutionally mandated" (People v Harris, 61 NY2d 9,19 [1983]). There must, however, be some " 'affirmative showing on the record'that the defendant waived his [or her] constitutional rights" (People v Tyrell, 22NY3d at 365, quoting People v Fiumefreddo, 82 NY2d 536, 543 [1993]; see People v Moore, 24 NY3d1030, 1031 [2014]).
Contrary to the conclusion of our colleagues, this is not a case where the recordevinces "a complete absence of discussion of any of the pertinent constitutional rights. . . . by the court, defense counsel or defendant" (People v Tyrell,22 NY3d at 366; compare People v Moore, 24 NY3d at 1031). County Courtasked defendant during the plea colloquy if he had adequately conferred with defensecounsel on whether to move forward with a trial and probation violation hearing.Defendant confirmed that he had, and agreed that he had no questions of defense counsel"regarding . . . giving up [his] rights to proceed to a trial" (compare People v Klinger, 129AD3d 1115, 1116-1117 [2015]). Defense counsel requested additional time to speakto defendant, and County Court adjourned the case until the next morning. The pleacolloquy was concluded then and, given the parties' interactions the prior day, was lessthan comprehensive. County Court again confirmed, however, that defendant was notbeing forced to give up his trial rights and had no further questions of defense counselregarding "giving up [his] rights."
There is no question that a further explanation by County Court as to the trial rightsthat defendant was forfeiting by pleading guilty would have been welcome. Defendantnevertheless acknowledged on the record that he had no questions of defense counselregarding the nature of the trial rights that he was giving up, they conferred overnight,and defendant reiterated the next day that he had no questions of defense counselregarding the forfeiture of his rights. Absent any indication that defense counsel renderedineffective assistance or otherwise failed to discuss the nature of the trial rights thatdefendant was expected to forfeit, we have no difficulty discerning from this record that"defendant consulted with his attorney about the constitutional consequences of a guiltyplea" and knowingly accepted those consequences (People v Tyrell, 22 NY3d at365; see People v Harris, 61 NY2d at 19-20; People v Ocasio-Rosario, 120 AD3d 1463, 1464 [2014];compare People v Klinger, 129 AD3d at 1117).
Egan Jr., J., concurs. Ordered that the judgment is reversed, as a matter of discretionin the interest of justice, and matter remitted to the County Court of Sullivan County forfurther proceedings not inconsistent with this Court's decision.