| People v Edwards |
| 2020 NY Slip Op 01671 [181 AD3d 1054] |
| March 12, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ariana L. Edwards, Also Known as Thora,Appellant. |
G. Scott Walling, Slingerlands, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Stephen D. Ferri of counsel),for respondent.
Lynch, J. Appeal from a judgment of the County Court of Broome County (CawleyJr., J.), rendered February 23, 2017, convicting defendant upon her pleas of guilty of thecrimes of murder in the second degree, burglary in the third degree and attemptedburglary in the second degree.
In 2015, defendant waived indictment and pleaded guilty to a superior courtinformation (hereinafter SCI) charging her with attempted burglary in the second degreeand burglary in the third degree. Prior to sentencing, defendant was charged in March2016 and April 2016 in two separate indictments with various crimes. In January 2017,defendant pleaded guilty to murder in the second degree in satisfaction of thoseindictments. County Court sentenced defendant to a prison term of 25 years to life on themurder conviction and to separate prison terms on the burglary convictions, all of which,pursuant to the terms of the plea agreement, were to run concurrently. Defendantappeals.
Defendant first maintains that the 2015 waiver of indictment was invalid because noshowing was made that she signed the waiver in open court in the presence of hercounsel (see CPL 195.20). In our view, the record shows otherwise. AlthoughCounty Court initially referred to an SCI, the court expressly inquired of defendantwhether it was her "signature over the word defendant" on the waiver document.Defendant confirmed that it was and that she signed the document in court that morningwith her counsel present. After advising defendant of the rights she was waiving, whichdefendant acknowledged she understood, the court determined that the "waiver [was]acceptable." The court also signed an approval included on the waiver document statingthat defendant appeared before the court and voluntarily signed the waiver. On thisrecord, we are satisfied that the waiver was signed in open court with counselpresent.
Pursuant to our recent decisions in People v Elric YY. (179 AD3d 1304 [2020]) and People v Shindler (179 AD3d1306 [2020]), defendant's further contention that her 2015 waiver of indictment wasjurisdictionally defective because the SCI did not set forth the approximate time of thecommission of the charged crimes as required by CPL 195.20 is also without merit(see People v Lang, 34 NY3d 545, 565-570 [2019]). The omission of the approximate time of the charged crimes in the SCI, towhich defendant did not object, is a nonjurisdictional defect to which any objection wasforfeited by her guilty plea. Notably, no claim has been made that defendant lackednotice of the specific crimes for which she agreed to waive prosecution byindictment.
Next, defendant contends that her guilty pleas were not knowing, voluntary andintelligent because County Court did not adequately inform her of the constitutionalrights she was waiving by pleading guilty. Defendant's contention is not preserved forour review as the record does not reflect that she, in connection with either pleaproceeding, made an appropriate postallocution motion (see People v Williams, 27NY3d 212, 220 [2016]; People v Conceicao, 26 NY3d 375, 382 [2015]; People v Strack, 177 AD3d1036, 1037 [2019]). Recognizing as much, defendant urges this Court to exerciseour interest of justice jurisdiction to take corrective action (see People v Glover, 174AD3d 1044, 1045 [2019]; People v Demkovich, 168 AD3d 1221, 1221 [2019]; People v Holmes, 162 AD3d1117, 1118 [2018]; but seePeople v Long, 165 AD3d 1323, 1323 [2018], lv denied 32 NY3d 1126[2018]).
"Although trial courts are not required to adhere to a rigid script or formula prior toaccepting a defendant's guilty plea, the record must affirmatively demonstrate that thedefendant waived his or her constitutional trial-related rights—namely, theprivilege against self-incrimination, the right to a jury trial and the right to be confrontedby witnesses" (People v Demkovich, 168 AD3d at 1221 [citations omitted]). Aplea need not be invalidated simply because the trial judge failed to enumerate all theconstitutional rights being waived by a guilty plea (see People v Tyrell, 22 NY3d 359, 365 [2013]). In thisregard, the Court of Appeals has "opted for a flexible rule that considers all of therelevant circumstances surrounding a plea" (People v Conceicao, 26 NY3d at382-383 [internal quotation marks and citations omitted]; see People v Harris, 61NY2d 9, 19 [1983]). Pertinent factors to consider include the seriousness of the crime,actual competent participation by counsel and the timing of the plea (see People vConceicao, 26 NY3d at 383).
A review of the brief plea colloquy pertaining to the burglary convictions shows thatCounty Court advised defendant that, by pleading guilty, she would "give up the right toa trial[,] right to testify, to call witnesses, to cross-examine the People'switnesses"—an instruction we deemed deficient in People v Demkovich(168 AD3d at 1222) and People v Glover (174 AD3d at 1045), cases in which therecord also failed to demonstrate that a defendant had discussed the impact of the waiverwith counsel. However, here, the murder plea took place on Friday, January 27, 2017,with a jury trial scheduled to begin the following Monday morning. At the start of thisappearance, defendant's attorney announced that, after conferring with both the DistrictAttorney and the court, defendant was prepared to plead guilty to murder in the seconddegree, with the understanding that the sentence would be up to the court, ranging from aprison term of 15 years to life to a prison term of 25 years to life. Sentencing on theburglary convictions would run concurrently to the murder conviction. This timingsequence demonstrates that defendant made the decision to plead guilty after consultingwith counsel prior to the start of the impending trial (see People v Conceicao, 26NY3d at 384). The record further reflects that defendant's counsel actively litigated themurder case for more than 10 months (see id.). In the ensuing colloquy, the courtfirst confirmed that defendant understood that jury selection was scheduled "to beginMonday morning at 9:45." The court then advised defendant that, by pleading guilty, shewould give up the right to the scheduled jury trial, "the right to testify at that trial, to callwitnesses at that trial [and] the right that would require the prosecution to prove to thatjury unanimously [her] guilt beyond a reasonable doubt." Given these circumstances, inwhich the murder plea embraced the earlier burglary plea by calling for concurrentsentences, we are satisfied that corrective action is unwarranted and decline to exerciseour interest of justice jurisdiction to invalidate either plea. Finally, the sentence imposedwas within the parameters of the plea agreement and not unduly harsh andexcessive.
Garry, P.J., Egan Jr., Mulvey and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.