| People v Simon |
| 2018 NY Slip Op 07370 [166 AD3d 1075] |
| November 1, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tyrell Simon, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
James R. Farrell, District Attorney, Monticello (Kristin L. Hackett of counsel), forrespondent.
Lynch, J.P. Appeal from a judgment of the Supreme Court (Schick, J.), renderedDecember 1, 2016 in Sullivan County, convicting defendant upon his plea of guilty ofthe crimes of criminal possession of a controlled substance in the third degree andcriminal possession of a weapon in the second degree.
In September 2014, law enforcement located defendant, who had an active warrantfor his arrest, inside a residence, wherein he was found to be in possession of a stolen,loaded revolver, 202 wax envelopes of heroin, 14 Suboxone sublingual film strips, twomarihuana cigarettes and various drug-related paraphernalia. In December 2014,defendant was charged in an indictment with criminal possession of a weapon in thesecond degree, criminal possession of a controlled substance in the third degree, criminalpossession of a controlled substance in the fourth degree, criminal possession of stolenproperty in the fourth degree and resisting arrest. In April 2015, defendant was chargedin a superior court information with criminal possession of a controlled substance in thethird degree stemming from a separate incident involving defendant's possession ofheroin. In a global disposition of the indictment and superior court information,defendant pleaded guilty to criminal possession of a weapon in the second degree andcriminal possession of a controlled substance in the third degree and executed twoseparate waivers of appeal in open court. Defendant's subsequent postplea motion towithdraw his plea was denied by Supreme Court in a written decision and order.Thereafter, the court sentenced defendant, in accordance with the terms of the pleaagreement, to an aggregate prison term of seven years, to be followed by five years ofpostrelease supervision. Defendant appeals.
Defendant's sole contention on appeal is that his guilty plea was not knowing,voluntary and intelligent because County Court (LaBuda, J.) failed to adequately informhim of the constitutional rights that he was waiving by pleading guilty. Assuming,without deciding, that [*2]the waivers of appeal werevalid, defendant's challenge to the voluntariness of his guilty plea survives a valid waiverof the right to appeal (seePeople v Tucker, 164 AD3d 948, 950 [2018]; People v Howe, 150 AD3d1321, 1322-1323 [2017]). Defendant's contention on appeal, however, isunpreserved for our review because, although defendant made a postplea motion towithdraw his guilty plea (see CPL 220.60 [3]), his motion was not premised uponthe grounds now asserted—to wit, County Court's alleged failure to adequatelyinform him of the constitutional rights that he was forfeiting by pleading guilty (see People v Conceicao, 26NY3d 375, 381-382 [2015]; People v Scales, 118 AD3d 1500, 1501 [2014], lvdenied 23 NY3d 1067 [2014]; People v Dame, 100 AD3d 1032, 1033 [2012], lvdenied 21 NY3d 1003 [2013]; People v DePalma, 99 AD3d 1116, 1117 [2012], lvdenied 20 NY3d 1010 [2013]; cf. People v Rayburn, 150 AD3d 1553, 1554 [2017]). Wenonetheless exercise our interest of justice jurisdiction to take corrective action andreverse the judgment (see CPL 470.15 [3] [c]; People v Holmes, 162 AD3d1117, 1118 [2018]; Peoplev Cotto, 156 AD3d 1063, 1063-1064 [2017]).
"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 tobe confronted by witnesses" (People v Tyrell, 22 NY3d 359, 365 [2013]; see Boykinv Alabama, 395 US 238, 243 [1969]). "While there is no mandatory catechismrequired of a pleading defendant, there must be an affirmative showing on the record thatthe defendant waived his or her constitutional rights" (People v Lowe, 133 AD3d1099, 1100 [2015] [internal quotation marks, brackets and citations omitted]; seePeople v Tyrell, 22 NY3d at 365; People v Cotto, 156 AD3d at 1064).During the plea proceedings, County Court engaged in an abbreviated colloquy duringwhich it made only a passing reference to certain rights that defendant was forfeiting bypleading guilty. Although defendant was advised of his right to a jury trial, the court didnot mention the privilege against self-incrimination or the right to be confronted bywitnesses (see People v Holmes, 162 AD3d at 1118; People v Cotto, 156AD3d at 1064). The court also failed to establish adequately that defendant had consultedwith his counsel specifically about his relinquishment of trial-related rights or theconsequences of his guilty plea, "instead making a vague inquiry into whether defendanthad spoken to defense counsel" (People v Herbert, 147 AD3d 1208, 1210 [2017] [internalquotation marks and citation omitted]) about the indictment, the drug charge "andanything else that [was] important to [him]" (id.; see People v Holmes,162 AD3d at 1118; People v Lowe, 133 AD3d at 1101). With no affirmativeshowing on the record before us that defendant understood and voluntarily waived hisconstitutional rights at the time he entered his guilty plea, the plea was invalid and mustbe vacated (see People v Holmes, 162 AD3d at 1118; People v Cotto, 156AD3d at 1064; People v Herbert, 147 AD3d at 1210).
Clark, Mulvey, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isreversed, as a matter of discretion in the interest of justice, and matter remitted to theSupreme Court for further proceedings not inconsistent with this Court's decision.