| People v Glover |
| 2019 NY Slip Op 05587 [174 AD3d 1044] |
| July 11, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Chakaris M. Glover, Appellant. |
Amanda FiggsGanter, Albany, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered March 31, 2016, convicting defendant upon her plea of guilty of the crime of attemptedcriminal possession of a controlled substance in the third degree.
After her arrest on a charge of criminal possession of a controlled substance in the thirddegree, defendant waived indictment and agreed to be prosecuted by a superior court informationcharging her with criminal possession of a controlled substance in the third degree. In satisfactionthereof, she pleaded guilty to attempted criminal possession of a controlled substance in the thirddegree. Thereafter, in accordance with the terms of the plea agreement, she was sentenced as asecond felony offender to 1
Defendant contends that her guilty plea was not knowing, voluntary and intelligent becauseCounty Court failed to adequately advise her of the constitutional rights that she wasrelinquishing by pleading guilty. This claim was not preserved for appellate review; althoughdefendant had filed a postallocution motion to withdraw her guilty plea, she subsequentlywithdrew said motion (see People vPeque, 22 NY3d 168, 182 [2013]; People v Sommers, 140 AD3d 1537, 1538 [2016], lv denied28 NY3d 974 [2016]).[FN*]Defendant nevertheless asks this Court to exercise its interest of justice jurisdiction to takecorrective action (see CPL 470.15 [3] [c]).
In a notably brief plea colloquy, County Court advised defendant that, by pleading guilty, shewould forever relinquish "the right to go to trial, the right to testify, to call witnesses, [and to]cross-examine the People's witness[es]." There was no discussion of the privilege againstself-incrimination or the right to be tried by a jury, nor was there any inquiry into whetherdefendant had conferred with counsel and understood the constitutional rights that she wasautomatically waiving by pleading guilty (see People v Demkovich, 168 AD3d 1221, 1221-1222 [2019]; People v Holmes, 162 AD3d 1117,1118 [2018]; People v Cotto, 156AD3d 1063, 1064 [2017]). "While there is no mandatory catechism required of a pleadingdefendant, there must be an affirmative showing on the record that the defendant waived his orher constitutional rights" (People vLowe, 133 AD3d 1099, 1100 [2015] [internal quotation marks, brackets and citationsomitted]; accord People v Herbert,147 AD3d 1208, 1210 [2017]; seePeople v Tyrell, 22 NY3d 359, 365-366 [2013]). As this record contains no suchshowing, the guilty plea is invalid (seePeople v Simon, 166 AD3d 1075, 1077 [2018]; People v Aubain, 152 AD3d 868, 870 [2017]; People v Klinger, 129 AD3d 1115,1117 [2015]).
We note that defendant has now served her negotiated sentence, has been released fromcustody and, upon the reversal of this conviction, will again face prosecution for the originalcharge. Despite these potential perils, in view of her repeated requests and after consideration ofthe particular facts and circumstances presented, we now exercise our interest of justicejurisdiction and reverse the judgment of conviction (see People v Holmes, 162 AD3d at1117-1118; People v Cotto, 156 AD3d at 1063-1064).
Rumsey, J., concurs.
Clark, J. (concurring). We agree with the majority that the judgment of conviction should bereversed in the interest of justice. However, we write separately because, unlike the majority andthe dissent, we believe that County Court mishandled defendant's motion to withdraw her guiltyplea and, further, that this Court's interest of justice analysis should not include consideration ofthe potential consequences to a defendant upon reversal of a judgment of conviction enteredupon a guilty plea.
With respect to defendant's postallocution motion to withdraw her guilty plea, although sheinitially acted pro se, defendant's motion was later adopted by her attorney at an appearancebefore County Court. The People did not oppose the motion. County Court adjourned the matterto decide defendant's motion, but, before doing so, brought the parties back into court. At thatpoint, the court informed defendant that it had not yet decided her motion and strongly suggestedto defendant that she should withdraw her motion, at which point she did. Defendant did not seekto withdraw her motion on her own initiative. In our view, County Court's unnecessary andinappropriate prompting was the driving force behind defendant's decision to withdraw hermotion. Had County Court simply denied the motion, rather than bringing the parties back intocourt and seeking defendant's withdrawal of the motion, defendant's challenge to the validity ofher guilty plea would have been properly preserved and this Court would not have to exercise itsinterest of justice jurisdiction to take corrective action.
As to the "potential perils" that defendant may face upon the reversal, noted by both themajority and the dissent, it is our view that this Court should not speculate as to the outcome ofreversing the judgment of conviction and remitting the matter to County Court. Consideration ofwhether to exercise this Court's interest of justice jurisdiction should not include a weighing ofthe potential risks and benefits to a defendant that may result from vacatur of the underlyinginvalid guilty plea. Just as a defendant retains decision-making authority over the fundamentaldecision of whether to plead guilty or to proceed to trial (see People v Clark, 28 NY3d 556, 563 [2016]; People v Hogan, 26 NY3d 779,786 [2016]), such risk-benefit assessment ought to remain with the defendant, who, here,affirmatively requests corrective action in the interest of justice.[FN*]
Although we differ from the majority on the foregoing points, we firmly agree that thejudgment of conviction should be reversed in the interest of justice. Accordingly, we concur.
Mulvey, J., concurs.
Egan Jr., J. (dissenting). I respectfully dissent. In my view, our original decision in this caseand that of People v Demkovich(168 AD3d 1221 [2019]) are not inconsistent because we should exercise our interest ofjustice jurisdiction based upon a case-by-case review of the facts of the case at hand and shouldrefrain from using it to resolve public policy concerns or to correct perceived systemic failures(see People v Williams, 145 AD3d100, 107 [2016]; People v Harmon, 181 AD2d 34, 36 [1992]), i.e., addressingrepetitive issues concerning arguably deficient plea colloquies by certain trial courts. In myopinion, to routinely exercise such jurisdiction and reverse a judgment of conviction based upona claimed allocution error, which defendant observed but had no objection to at the time it wasmade, effectively eviscerates the preservation requirement in these plea colloquy cases and, inessence, grants a defendant the opportunity to accept a plea bargain and silently bank awaygrounds for reversal for future appellate purposes (see People v Williams, 27 NY3d 212, 224-225 [2016]; People v Walston, 23 NY3d 986,992 [2014, Smith, J., concurring]).
I respectfully disagree that this case is one that "cries out for fundamental justice beyond theconfines of conventional considerations" (People v Williams, 145 AD3d at 107 [internalquotation marks and citation omitted]; see People v Matthew NN., 156 AD3d 1119, 1120 [2017]).Defendant has a prior criminal history, was represented by counsel, admitted that she possessedheroin with intent to sell it and elected to enter into a negotiated plea agreement with a favorablesentence.[FN*] Defendantvoiced no objection to the adequacy of the allocution at a time when County Court could haveaddressed those concerns and now, having raised this issue for the first time on appeal, does notcontend that she is innocent of the crime charged. Defendant has served the sentence she agreedto and has been released from custody. If this conviction is reversed, defendant once again facesprosecution for the original charge, which, if convicted, carries a sentencing range of between 2and 12 years in prison (see Penal Law § 70.70 [3] [b] [i]). Accordingly,under these circumstances, and seeing no claim of actual innocence or sign of fundamentalunfairness, I would decline to exercise our interest of justice authority (see CPL 470.15[3] [c]; [6] [a]; People v Walker,135 AD3d 1244, 1245-1246 [2016]; see also People v Long, 165 AD3d 1323, 1323 [2018], lvdenied 32 NY3d 1126 [2018]; People v Simmons, 138 AD3d 520, 520 [2016], lv denied27 NY3d 1139 [2016]).
Notably, other than citing to County Court's arguably flawed plea colloquy, the majority failsto indicate any additional factor that militates in favor of or should otherwise compel this Courtto exercise its interest of justice jurisdiction and reverse the judgment of conviction. The fact thatthis Court has routinely exercised its interest of justice jurisdiction in similar circumstances inthe past (see e.g. People v Demkovich, 168 AD3d at 1222; People v Simon, 166 AD3d 1075,1077 [2018]; People v Schmitz, 159AD3d 1222, 1223 [2018]; People vCotto, 156 AD3d 1063, 1063-1064 [2017]; People v Aubain, 152 AD3d 868, 870 [2017]; People v Lowe, 133 AD3d 1099,1100-1101 [2015]; People vKlinger, 129 AD3d 1115, 1117 [2015]; People v Vences, 125 AD3d 1050, 1051 n [2015]; People v Dalton, 69 AD3d 1235,1236 [2010]) does not, in and of itself, justify such prolific use of what should otherwise be arare and limited exercise of discretionary authority, especially given the numerous instances thatthis Court has declined to exercise its interest of justice jurisdiction under the same or similarcircumstances (see e.g. People v Long, 165 AD3d at 1323; People v Bond, 146 AD3d 1155,1156 [2017], lv denied 29 NY3d 1076 [2017]; People v Kormos, 126 AD3d 1039, 1040 [2015]; People v Ocasio-Rosario, 120 AD3d1463, 1464 [2014], lvs denied 25 NY3d 1168 [2015], 26 NY3d 1148 [2016]; People v Brabham, 112 AD3d1066, 1067 [2013]; People vGathers, 106 AD3d 1333, 1334 [2013], lv denied 21 NY3d 1073 [2013]).
While I recognize that it is a "vital responsibility" of the trial courts to ensure that defendantswho plead guilty do so knowingly, voluntarily and intelligently, it is well settled that trial courts"need not engage in any particular litany" (People v Conceicao, 26 NY3d 375, 382 [2015]). In my view, untilthe Legislature or the Court of Appeals elects to require that trial courts follow a particularcatechism in taking a guilty plea, it is not appropriate for this Court to exercise its interest ofjustice jurisdiction to reverse a judgment of conviction and vacate a guilty plea, where, as here,the defendant failed to preserve the issue for appeal and affirmatively chose, followingconsultation with counsel, not to pursue a postallocution motion to withdraw his or her plea. If itis consistency that the majority is after in such plea cases, the remedy lies in requiring litigants toadequately preserve the record for appropriate appellate review, as opposed to expanding the useof what should be a rare and limited application of our interest of justice jurisdiction.
Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, andmatter remitted to the County Court of Broome County for further proceedings not inconsistentwith this Court's decision.
Footnote *:The record does not supportdefendant's contention that County Court coerced her into abandoning her motion to withdrawher guilty plea. After defendant filed her pro se motion, County Court cautioned her with regardto the potential risks to which she would be exposing herself should she choose to proceed. Uponfurther consideration, and—significantly—after consultation with her defensecounsel, defendant unequivocally agreed to withdraw the motion (see People v Skidds, 123 AD3d1342, 1343 [2014], lv denied 25 NY3d 992 [2015]).
Footnote *:It is important to note that thePeople declined to submit a responsive brief on direct appeal and informed the Court that theydid not oppose defendant's request.
Footnote *:Although defendant later filed amotion to withdraw her plea, she was granted an adjournment and provided with adequate timeto consult with counsel prior to voluntarily electing to withdraw the motion.