| People v Cotto |
| 2017 NY Slip Op 08759 [156 AD3d 1063] |
| December 14, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v WilfredoCotto Jr., Appellant. |
Karin Marris, Syracuse, for appellant.
William G. Gabor, District Attorney, Wampsville (Scott Bielicki of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Madison County(McDermott, J.), rendered March 9, 2016, convicting defendant upon his plea of guilty of thecrime of burglary in the third degree.
Defendant was charged with burglary in the third degree (two counts), grand larceny in thethird degree and grand larceny in the fourth degree. He thereafter pleaded guilty to one count ofburglary in the third degree in full satisfaction of the charges and purportedly waived his right toappeal. County Court sentenced defendant, as a second felony offender, to 2 to 4 years in prison,and defendant now appeals.
Initially, we agree with defendant that his waiver of the right to appeal was invalid. Althoughdefendant executed a written waiver, County Court did not discuss the waiver with defendant oreven verify with him that he signed it, and the written waiver did not convey that the right toappeal is separate and distinct from the rights automatically forfeited upon a guilty plea (see People v Mones, 130 AD3d1244, 1245 [2015]). In short, the court failed "to ensure that defendant understood thecontent or consequences of the appeal waiver" (People v Williams, 132 AD3d 1155, 1155 [2015], lv denied27 NY3d 1157 [2016]; accord People vGonzalez, 138 AD3d 1353, 1354 [2016]).
Defendant also argues that his plea was not knowing, intelligent and voluntary because [*2]County Court failed to advise him of the constitutional rights hewas waiving by pleading guilty. Although this argument was not preserved for our reviewthrough an appropriate postallocution motion, we exercise our interest of justice jurisdiction totake corrective action and reverse the judgment (see CPL 470.15 [3] [c]; People v Klinger, 129 AD3d 1115,1116 [2015]).
"When a defendant opts to plead guilty, he [or she] must waive certain constitutionalrights—the privilege against self-incrimination and the rights to a jury trial and to beconfronted by witnesses" (People vTyrell, 22 NY3d 359, 365 [2013], citing Boykin v Alabama, 395 US 238, 243[1969]). "While there is no mandatory catechism required of a pleading defendant, there must bean affirmative showing on the record that the defendant waived his or her constitutional rights"(People v Lowe, 133 AD3d1099, 1100 [2015] [internal quotation marks, brackets and citations omitted]; see Peoplev Tyrell, 22 NY3d at 365; People vHerbert, 147 AD3d 1208, 1210 [2017]). The Court of Appeals has made clear that thetrial judge has the responsibility to ensure that the defendant fully understands the plea and itsconsequences (see People v Sougou,26 NY3d 1052, 1054-1055 [2015]). During the plea colloquy, County Court did notreference the privilege against self-incrimination or the right to be confronted by witnesses and,although defendant was advised of his right to a trial, the court did not specify a jury trial. "Wecannot conclude that defendant's guilty plea was knowing, voluntary and intelligent as there wasneither an affirmative showing on the record that defendant waived his constitutional rights norany indication that he consulted with his attorney about the constitutional consequences of aguilty plea" (People v Vences, 125AD3d 1050, 1051 [2015] [internal quotation marks and citations omitted]; see People vHerbert, 147 AD3d at 1210; People v Lowe, 133 AD3d at 1100-1101).
Rose, Devine, Mulvey and Rumsey, JJ., concur. Ordered that the judgment is reversed, as amatter of discretion in the interest of justice, and matter remitted to the County Court of MadisonCounty for further proceedings not inconsistent with this Court's decision.