| People v Lowe |
| 2015 NY Slip Op 08665 [133 AD3d 1099] |
| November 25, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vGary Lowe, Also Known as Pops, Appellant. |
D.J. & J.A. Cirando, Syracuse (John A. Cirando of counsel), for appellant.
Gwen Wilkinson, District Attorney, Ithaca (Gary U. Surdell of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Tompkins County(Rowley, J.), rendered May 3, 2013, convicting defendant upon his plea of guilty of thecrime of manslaughter in the first degree.
Pursuant to a negotiated plea agreement that included an appeal waiver, defendantpleaded guilty to the reduced charge of manslaughter in the first degree in satisfaction ofa seven-count indictment. Prior to sentencing, defendant sent a pro se letter to CountyCourt seeking to withdraw his guilty plea and requesting the assignment of substitutecounsel. After an inquiry, the court denied the motion and imposed the agreed-uponsentence of 15 years in prison followed by five years of postrelease supervision.Defendant appeals.
Because the record does not demonstrate that defendant's guilty plea was knowing,voluntary and intelligent, the judgment of conviction must be reversed. Initially, althoughdefendant's challenge to the voluntariness of his plea survives even a valid appeal waiver(see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Klinger, 129 AD3d1115, 1116 [2015]), we note that County Court failed to adequately convey "that theright to appeal is separate and distinct from those rights automatically forfeited upon aplea of guilty" (People vLopez, 6 NY3d 248, 256 [2006]; see People v Bradshaw, 18 NY3d 257, 264 [2011]; People v Mones, 130 AD3d1244, 1244-1245 [2015]). While defendant's attorney confirmed during the pleaallocution that he had discussed a written plea memorandum with defendant and thatdefendant understood it, the memorandum similarly lumped the appeal waiver with otherconsequences of the plea and, in [*2]so doing, stated onlythat defendant "waives the right to appeal" without explaining the nature of the rightsthat he was waiving. Nor did the court make any inquiry into whether counsel haddiscussed the appeal waiver with defendant or whether defendant understood it.Accordingly, defendant did not validly waive his right to appeal (see People v Rabideau, 130AD3d 1094, 1095 [2015]; People v Phipps, 127 AD3d 1500, 1501 [2015], lvdenied 26 NY3d 970 [2015]; see also People v Callahan, 80 NY2d 273,280-283 [1992]).[FN1]
With regard to the guilty plea, County Court failed to adequately advise defendant ofthe constitutional trial-related rights that he was waiving by pleading guilty, namely, "theprivilege against self-incrimination and the rights to a jury trial and to be confronted bywitnesses" (People v Tyrell,22 NY3d 359, 365 [2013], citing Boykin v Alabama, 395 US 238, 243[1969]; see People v Mones, 130 AD3d at 1245-1246; People v Vences, 125 AD3d1050, 1051 [2015]).[FN2] While there is no "mandatorycatechism" required of a pleading defendant (People v Alexander, 19 NY3d 203, 219 [2012] [internalquotation marks and citation omitted]), "there must be 'an affirmative showing on therecord' that the defendant waived his [or her] constitutional rights" (People vTyrell, 22 NY3d at 365, quoting People v Fiumefreddo, 82 NY2d 536, 543[1993]; see People v Klinger, 129 AD3d at 1116-1117). During defendant's pleaallocution, County Court merely mentioned that, if defendant were to enter a guilty plea,he would be "giving up [his] right to remain silent." The court further failed to ascertainthat defendant had discussed with his attorney the trial-related rights he was waiving orthe constitutional consequences of a guilty plea (see People v Mones, 130 AD3dat 1245-1246; People v Klinger 129 AD3d at 1117; People v Vences, 125AD3d at 1051). While we are mindful of defendant's lengthy criminal record and the factthat he has entered numerous guilty pleas over the last 2
Garry, Rose and Clark, JJ., concur. Ordered that the judgment is reversed, as a matterof discretion in the interest of justice, and matter remitted to the County Court ofTompkins County for further proceedings not inconsistent with this Court'sdecision.
Footnote 1:The plea memorandumcontemplated that defendant would sign a written appeal waiver at sentencing, but thisnever occurred.
Footnote 2:Although defendant didnot raise this claim in his motion to withdraw his guilty plea, the Court of Appeals hassuggested that preservation may not be required for this type of error (see People vTyrell, 22 NY3d at 364; People v Klinger, 129 AD3d at 1116; People vVences, 125 AD3d at 1051 n). In any event, we exercise our interest of justicejurisdiction to reverse the judgment of conviction (see CPL 470.15 [3] [c]).