| People v Demkovich |
| 2019 NY Slip Op 00326 [168 AD3d 1221] |
| January 17, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey S. Demkovich, Appellant. |
John A. Cirando, Syracuse, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered April 7, 2016, convicting defendant upon his plea of guilty of the crimes of attemptedkidnapping in the second degree and criminal possession of a controlled substance in the thirddegree.
In August 2015, defendant was charged by indictment with kidnapping in the second degree,rape in the third degree and criminal possession of a controlled substance in the third degree.Defendant thereafter pleaded guilty to attempted kidnapping in the second degree and criminalpossession of a controlled substance in the third degree in full satisfaction of the indictment. Inaccordance with the negotiated plea agreement, County Court sentenced defendant, as a secondfelony offender, to an aggregate term of imprisonment of nine years, followed by five years ofpostrelease supervision. Defendant now appeals.
Defendant contends that his plea was not knowing, voluntary and intelligent because CountyCourt failed to advise him of the constitutional rights he was waiving by pleading guilty.Although defendant failed to preserve this contention for our review through an appropriatepostallocution motion (see People vConceicao, 26 NY3d 375, 382 [2015]; People v Haenelt, 161 AD3d 1489, 1489-1490 [2018], lvdenied 31 NY3d 1148 [2018]; People v Tucker, 160 AD3d 1303, 1303 [2018], lv denied31 NY3d 1122 [2018]; compare People v Glover, 168 AD3d 1217 [2019] [decided herewith]), we nonetheless exercise our interest of justice jurisdiction totake corrective action and reverse the judgment (see CPL 470.15 [3] [c]; People v Holmes, 162 AD3d 1117,1118 [2018]; People v Herbert, 147AD3d 1208, 1210 [2017]). Although trial courts are not required to adhere to a rigid script orformula prior to accepting a defendant's guilty plea, the record must affirmatively demonstratethat the defendant waived his or her constitutional trial-related rights—namely, theprivilege against self-incrimination, the right to a jury trial and the right to be confronted bywitnesses (see People v Tyrell, 22NY3d 359, 365 [2013]; People vCotto, 156 AD3d 1063, 1064 [2017]; People v Lowe, 133 AD3d 1099, 1100 [2015]).
Here, during the abbreviated plea colloquy, County Court briefly advised defendant that, ifhe were to plead guilty, he would be giving up his "right to a trial, . . . the right totestify at that trial, to call witnesses and to cross-examine the People's witnesses." Significantly,County Court did not advise defendant that he had a right to a jury trial or that he wouldbe waiving the privilege against self-incrimination by entering a guilty plea (see People vHolmes, 162 AD3d at 1118; People v Cotto, 156 AD3d at 1064). Further, the courtfailed to obtain any assurance that defendant had discussed with counsel the trial-related rightsthat are automatically forfeited by pleading guilty or the constitutional implications of a guiltyplea (see People v Herbert, 147 AD3d at 1210; People v Lowe, 133 AD3d at1101; compare People vOcasio-Rosario, 120 AD3d 1463, 1464 [2014], lvs denied 25 NY3d 1168[2015], 26 NY3d 1148 [2016]). In the absence of an affirmative showing on the record thatdefendant understood and voluntarily waived his constitutional rights when he pleaded guilty, theplea is invalid and must be vacated (see People v Holmes, 162 AD3d at 1118; Peoplev Herbert, 147 AD3d at 1211; People v Klinger, 129 AD3d 1115, 1117 [2015]).
Defendant's remaining contentions have been rendered academic by our determination.
Mulvey and Aarons, JJ., concur.
Egan Jr., J.P. (dissenting). We respectfully dissent because we do not think that theunpreserved error cited by the majority, standing alone, necessitates this Court exercising itsinterest of justice jurisdiction to reverse the judgment of conviction as there is nothingcompelling about this case that "cries out for fundamental justice beyond the confines ofconventional considerations" (People vWilliams, 145 AD3d 100, 107 [2016] [internal quotation marks and citation omitted];see People v Matthew NN., 156AD3d 1119, 1120 [2017]). Exercise of this Court's interest of justice jurisdiction should berare and it should be used sparingly, upon a case-by-case review, as such jurisdiction was "notdesigned or intended to be used to resolve public policy concerns or for a system-wide fix"(People v Williams, 145 AD3d at 107; see People v Harmon, 181 AD2d 34, 36[1992]), i.e., addressing repetitive issues concerning arguably deficient plea colloquies by certaintrial courts. Although the Court of Appeals has made plain that it is a "vital responsibility" of thetrial courts to ensure that defendants who plead guilty do so knowingly, voluntarily andintelligently, it is well settled that trial courts "need not engage in any particular litany" (People v Conceicao, 26 NY3d375, 382 [2015]). In our view, until the Legislature or the Court of Appeals elects to requirethat trial courts follow a particular catechism in taking a guilty plea, it is not appropriate for thisCourt to exercise its interest of justice jurisdiction to reverse a judgment of conviction each timeit determines that a trial court has failed to completely advise a defendant of each and everyconstitutional right that he or she is foregoing when taking a guilty plea, particularly where, ashere, the defendant voiced no objection to the content of the allocution either at the time itoccurred or in any subsequent postplea motion to the trial court.
Here, defendant failed to make an appropriate postallocution motion on the ground that hisplea was not knowingly, voluntarily or intelligently entered into, nor does the narrow exceptionto the preservation rule apply. On appeal, defendant does not claim that he is innocent of thecharges to which he previously pleaded guilty, nor has he demonstrated any extraordinarycircumstances that would justify taking corrective action in the interest of justice. At all relevanttimes, defendant was represented by counsel, was initially presented with a plea offer inSeptember 2015 and, following a two-week adjournment, elected to reject same. In December2015, while defendant's omnibus motion was pending, the People notified County Court thatdefendant had agreed to enter a plea of guilty in accord with the terms of the original plea offer.At a brief subsequent court appearance, the matter was further adjourned to January 2016 so thatdefendant could, among other things, make inquiry of the incoming District Attorney as towhether the consecutive sentences contemplated in the subject plea offer could run concurrently.The People were subsequently unwilling to make such a concession, and, in turn, defendantchose to plead guilty in accord with the terms previously offered. He then admitted that he hadabducted the victim and that he had unlawfully possessed a quantity of heroin with the intent tosell it; he was subsequently sentenced, as a second felony offender, in accord with the negotiateddisposition. In sum, we do not perceive any rare, unusual or extraordinary circumstances in thepresent matter that should compel this Court to take corrective action (see People vWilliams, 145 AD3d at 108), and, therefore, we would decline to exercise our interest ofjustice jurisdiction (see CPL 470.15 [6] [a]; People v Walker, 135 AD3d 1244, 1245-1246 [2016]; see also People v Cade, 165 AD3d551, 551 [2018]; People vGillegbower, 143 AD3d 479, 479 [2016], lv denied 28 NY3d 1145 [2017]; People v Simmons, 138 AD3d520, 520 [2016], lv denied 27 NY3d 1139 [2016]; compare People v Holmes, 162 AD3d1117, 1118 [2018]).
Pritzker, JJ., concurs. Ordered that the judgment is reversed, as a matter of discretion in theinterest of justice, and matter remitted to the County Court of Broome County for furtherproceedings not inconsistent with this Court's decision.