| People v Howard |
| 2021 NY Slip Op 00210 [190 AD3d 1108] |
| January 14, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Matthew Howard, Appellant. |
Adam G. Parisi, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the Supreme Court (Sypniewski, J.), rendered May24, 2018 in Schenectady County, convicting defendant upon his plea of guilty of the crime ofdriving while intoxicated.
In October 2015, defendant was arrested for, as pertinent here, driving while intoxicated.Defendant waived indictment and was charged in a superior court information with driving whileintoxicated as a felony. In December 2016, he pleaded guilty to this crime and purportedlywaived his right to appeal. As part of the plea agreement, defendant was provided the opportunityto participate in drug court and, if successful, to serve a term of probation. However, in May2018, he was terminated from drug court and, in accordance with the provisions of the pleaagreement, he was sentenced to 1 to 3 years in prison. Defendant appeals.
Initially, as defendant claims and the People concede, defendant's waiver of appeal is invalid(see People v Mitchell, 166 AD3d1233, 1233-1234 [2018], lv denied 33 NY3d 979 [2019]; People v Warren, 160 AD3d 1286,1287 [2018]; People v Evans, 159AD3d 1226, 1227 [2018], lv denied 31 NY3d 1081 [2018]). Next, defendantcontends that his guilty plea was not knowing, voluntary and intelligent because Supreme Court(Reilly Jr., J.) did not sufficiently advise him of the constitutional trial-related rights that he wasforfeiting by pleading guilty (see Boykin v Alabama, 395 US 238, 243 [1969]), and thathis counsel was ineffective for failing to preserve this issue. Both of these claims are unpreservedfor our review, as the record does not reflect that defendant made an appropriate postallocutionmotion (see People v Edwards, 181AD3d 1054, 1055 [2020], lv denied 35 NY3d 1026 [2020]; People v Alexander, 174 AD3d1068, 1069 [2019], lv denied 34 NY3d 949 [2019]). "Additionally, the narrowexception to the preservation requirement is inapplicable, as defendant did not make anystatements that were inconsistent with his guilt, negated an element of the crime or cast doubtupon the voluntariness of his plea" (People v Danzy, 182 AD3d 920, 921 [2020] [citations omitted],lv denied 35 NY3d 1043 [2020]).
"Defendant nevertheless asks this Court to exercise its interest of justice jurisdiction to takecorrective action" based upon Supreme Court's failure to enunciate each of his Boykinrights at the time of the plea (People vGlover, 174 AD3d 1044, 1045 [2019]). "Although trial courts are not required to adhereto a rigid script or formula prior to accepting a defendant's guilty plea, the record mustaffirmatively demonstrate that the defendant waived his or her constitutional trial-relatedrights—namely, the privilege against self-incrimination, the right to a jury trial and theright to be confronted by witnesses" (People v Demkovich, 168 AD3d 1221, 1221 [2019] [citationsomitted]; see People v Tyrell, 22NY3d 359, 365 [2013]). Here, Supreme Court advised defendant that, by pleading guilty, hewould be waiving the privilege [*2]against self-incrimination andthe right to a jury trial—but failed to specifically address defendant's right to confrontwitnesses.
The record establishes that prior to accepting the plea—which occurred roughly 14months after his arrest—defendant had discussed the plea with his attorney. He denied anycoercion or impairments and did not display any hesitancy in accepting the proposed pleaagreement; instead, the record reflects that defendant was well aware of the terms of his plea.Following the plea, and until sentencing—for a period of 17 months—defendantparticipated in drug court, in accord with the plea agreement. In these circumstances, reversalwould appear to be elevating form over substance; there is simply no basis for expecting that, hadSupreme Court uttered those few additional words of warning, defendant may have chosen toreject the favorable plea offer. Indeed, there is no basis to believe that his attorney had notexpressly advised him of this right. We recognize the significance of the Boykin rights, asthey are of constitutional dimension, and should always be set forth upon the record.Nonetheless, we also recognize authority promoting "a flexible rule that considers all of therelevant circumstances surrounding a plea" (People v Conceicao, 26 NY3d 375, 382-383 [2015] [internalquotation marks and citations omitted]). Thus, it is not required that, in each and everycircumstance, a plea must be invalidated "simply because the [court] failed to enumerate all theconstitutional rights being waived" (People v Edwards, 181 AD3d at 1056; see People v Proper, 133 AD3d918, 919 [2015]). Accordingly, in the circumstances presented, we decline to take correctiveaction in the interest of justice (see People v Edwards, 181 AD3d at 1056-1057; People v Ocasio-Rosario, 120 AD3d1463, 1464 [2014], lvs denied 25 NY3d 1168 [2015], 26 NY3d 1148 [2016];compare People v Demkovich, 168 AD3d at 1221-1222).
As to defendant's ineffective assistance claim, counsel obtained an adjournment for purposesof discussing the plea with defendant and answering his questions about the plea and procured avery favorable plea agreement, which included defendant's participation in drug court. Were thisclaim properly before us, on these facts, we would find that defendant was provided withmeaningful representation (see People vJackson, 159 AD3d 1276, 1277 [2018], lv denied 31 NY3d 1149 [2018]).
Egan Jr., Mulvey, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment isaffirmed.