| People v Holmes |
| 2018 NY Slip Op 04039 [162 AD3d 1117] |
| June 7, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Nolan Holmes, Appellant. |
Christopher Hammond, Cooperstown, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered February 29, 2016, convicting defendant upon his plea of guilty of the crime of coercionin the first degree.
Defendant was charged in an indictment with rape in the first degree and rape in the seconddegree following an incident in which he induced a 14-year-old girl to engage in sexualintercourse with him. In exchange for the dismissal of the indictment, he pleaded guilty tocoercion in the first degree as charged in a superior court information. He was sentenced, as asecond felony offender, to a prison term of 3
Defendant argues that his guilty plea must be vacated because County Court failed toadequately inform him of the constitutional rights he was waiving by pleading guilty. Althoughdefendant did not preserve this claim through an appropriate postallocution motion (see People v Conceicao, 26 NY3d375, 382 [2015]; People vHerbert, 147 AD3d 1208, 1210 [2017]), we find that the error warrants reversal of thejudgment of conviction in the interest of justice (see People v Schmitz, 159 AD3d 1222, 1223 [2018]; People v Cotto, 156 AD3d 1063,1064 [2017]). "When a defendant opts to plead guilty, he [or she] must waive certainconstitutional rights—the privilege against self-incrimination and the rights to a jury trialand to be confronted by witnesses" (People v Tyrell, 22 NY3d 359, 365 [2013]; see Boykin vAlabama, 395 US 238, 243 [1969]). "While there is no mandatory catechism required of apleading defendant, there must be [*2]an affirmative showing onthe record that the defendant waived his or her constitutional rights" (People v Lowe, 133 AD3d 1099,1100 [2015] [internal quotation marks, brackets and citations omitted]; see People vTyrell, 22 NY3d at 365; People v Cotto, 156 AD3d at 1064).
During the plea proceedings, County Court engaged in an abbreviated colloquy during whichit made only a passing reference to the rights that defendant was giving up by pleading guilty.Notably, the court did not mention the privilege against self-incrimination or advise defendant ofhis right to a jury trial. Nor did the court ascertain whether defendant had conferred with counselregarding the trial-related rights that he was waiving or the constitutional consequences of hisguilty plea. With no affirmative showing on the record that defendant understood and voluntarilywaived his constitutional rights when he entered his guilty plea, the plea was invalid and must bevacated (see People v Cotto, 156 AD3d at 1064; People v Lowe, 133 AD3d at1100-1101; People v Klinger, 129AD3d 1115, 1116-1117 [2015]; compare People v Bond, 146 AD3d 1155, 1156 [2017], lvdenied 29 NY3d 1076 [2017]; People v Proper, 133 AD3d at 919-920). In light ofour disposition, we need not address defendant's remaining claim.
Garry, P.J., Egan Jr., Lynch and Rumsey, JJ., concur. Ordered that the judgment is reversed,as a matter of discretion in the interest of justice, and matter remitted to the County Court ofBroome County for further proceedings not inconsistent with this Court's decision.