People v. Ayala

• Decision Date: 19 February 1982
• Citation: 112 Misc.2d 821,448 N.Y.S.2d 354
• Parties: The PEOPLE of the State of New York v. Luis AYALA.
• Court: New York Supreme Court

Page 354

448 N.Y.S.2d 354

112 Misc.2d 821

The PEOPLE of the State of New York v. Luis AYALA.

Supreme Court, Criminal Term,

Kings County, Part 55.

Feb. 19, 1982.

Elizabeth Holtzman, Dist. Atty., Kings County, Brooklyn, for the People; Robert E. Lamb, Brooklyn, of counsel.

Caesar D. Cirigliano, Legal Aid Soc., New York City, for defendant; Michael Considine, Brooklyn, of counsel.

OPINION OF THE COURT

RICHARD J. GOLDMAN, Justice.

Defendant moves to controvert the second felony statement filed by the District Attorney. Defendant has been indicted for robbery in the second degree (four counts), grand larceny in the third degree, criminal use of a firearm in the first degree, robbery in the second degree (two counts), criminal use of a firearm in the second degree, criminal possession of a weapon in the third degree (two counts) and criminal possession of a hypodermic instrument.

The indictment alleges three different incidents occurring on three separate dates having four different victims.

On October 27, 1981 defendant moved this court to withdraw his previous plea of not guilty and to plead guilty to one count of robbery in the first degree. Prior to accepting the plea, the court stated that it would sentence the defendant to a term of imprisonment having a minimum of six years and a maximum of twelve years. The plea was then accepted.

On December 14, 1981, the District Attorney filed a second felony offender statement setting forth a predicate felony conviction dated July 15, 1977 (CPL 400.21). The conviction was based on a plea of guilty taken on June 17, 1977.

The plea minutes to the extent relevant to this decision (pp. 2 and 3) read as follows:

"THE COURT: Do you understanding in pleading guilty you are waiving your right that you have at this time to a trial with a Jury or without a Jury?

THE DEFENDANT: Yes.

THE COURT: In Pleading guilty you are saying, in fact, you did commit the crime and for that reason you do not wish a trial whatsoever?

THE DEFENDANT: Yes, sir.

THE COURT: Is that your desire?

THE DEFENDANT: Yes, sir.

THE COURT: You are also waiving a presumption of innocence you have by Law which means that you do not have to prove your innocence. Contrary wise, the District Attorney must prove, beyond a reasonable doubt that you did commit a crime. You are also foregoing your right to contravert any other evidence produced by the Prosecution. Equally important you are foregoing your right to interpose a defense in your behalf if you so desire.

Anybody force you to give up these rights?

THE DEFENDANT: No, sir.

Defendant now claims that the plea cannot be used as a predicate felony because defendant was not advised of all of his Boykin rights (Boykin v. Ala., 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274).

CPL 400.21 subdivision 7(b) prohibits the use of any conviction obtained in violation of defendant's rights under the United States Constitution. It does not provide that a violation of a statutory right or a conviction in violation of a policy of New York State is grounds for non-use of such conviction (see, e.g., People v. Alston, 83 A.D.2d 744, 443 N.Y.S.2d 499, lv. to app. den. 54 N.Y.2d 835, 443 N.Y.S.2d 1059, 427 N.E.2d 1194).

The issue facing this court is whether the failure to advise defendant of a Boykin right invalidates the plea under the Constitution of the United States.

In State v. Ballard, 66 Ohio St.2d 473, 477-478, 423 N.E.2d 115, the court set forth the differing views of different jurisdictions as follows at 423 N.E.2d 115 page 118:

"There is a split of authority as to whether the complete omission of a Boykin constitutional right alone is cause to nullify a guilty plea. The answer to this question rests upon how Boykin is interpreted. Some courts read Boykin as requiring guilty pleas to be no more than voluntarily and knowingly entered, and hold that failure to mention, in any manner, a Boykin right does not necessarily result in an involuntary and unknowing guilty plea. See, e.g., Roddy v. Black (C.A. 6, 1975), 516 F.2d 1380, certiorari denied 423 U.S. 917, 96 S.Ct. 226, 46 L.Ed.2d 147; Wilkins v. Erickson (C.A. 9, 1974), 505 F.2d 761; Todd v. Lockhart (C.A. 8, 1974), 490 F.2d 626; McChesney v. Henderson (C.A. 5, 1973), 482 F.2d 1101; Beavers v. Anderson (C.A. 10, 1973), 474 F.2d 1114; Wade v. Coiner (C.A. 4, 1972), 468 F.2d 1059; United States v. Frontero (C.A. 5, 1971), 452 F.2d 406; Smith v. State (1978), 264 Ark. 329, 571 S.W.2d 591; State v. Colyer (1976) 98 Idaho 32, 557 P.2d 626; Davis v. State (1976) 278 Md. 103, 361 A.2d 113; Commonwealth v. Morrow (1973), 363 Mass. 601, 296 N.E.2d 468; State v. Propotnik (1974), 299 Minn. 56, 216 N.W.2d 637; State v. Turner (1971), 186 Neb. 424, 183 N.W.2d 763; State v. Martinez (App.1976), 89 N.M. 729, 557 P.2d 578; Heffley v. Warden (1973), 89 Nev. 573, 516 P.2d 1403, State v. Lambert (1976), 266 S.Car. 574, 225 S.E.2d 340; Merrill v. State (1973), 87 S.D. 285, 206 N.W.2d 828; Wood v. Morris (1976), 87 Wash.2d 501, 554 P.2d 1032.

Other courts have held that for a guilty plea to be voluntarily and intelligently entered, the defendant must be informed that he is waiving his Boykin rights. See, e.g., Easterling v. State (Ala.Crim.App.1977), 352 So.2d 33; People v. Rizer (1971), 5 Cal.3d 35 484 P.2d 1367; State v. Bugbee (1971), 161 Conn. 531, 290 A.2d 332; Williams v. State (Fla.1975) 316 So.2d 267; Williams v. State (1975), 263 Ind. 165, 325 N.E.2d 827; Brainard v. State (Iowa 1974), 222 N.W.2d 711; People v. Jaworski (1972), 387 Mich. 21, 194 N.W.2d 868; State v. Holden (La.1979), 375 So.2d 1372; Boag v. State (1980), 44 Ore.App. 99, 605 P.2d 304; and State v. Mackey (Tenn.1977) 553 S.W.2d 337."

The court notes that Ohio has a special statutory provision that mandates the giving of the Boykin rights. Similarly, Michigan cited for the per se rule ^* has a specific statutory provision requiring the plea court to advise defendant of his Boykin rights. In People v. Kuchulan, 390 Mich. 701, 704, 213 N.W.2d 95, the court held that the failure to inform a defendant of a Boykin right did not render the plea invalid under "Federal Constitutional Law" (213 N.W.2d 95, 97). The court did hold the plea invalid under the State statute. Similarly, Connecticut apparently has held that failure to advise defendant of a Boykin right is not a violation of the U. S. Constitution but of State policy (see Consiglio v. Warden, 160 Conn. 151, 276 A.2d 773 and discussion of that case in State v. Bugbee, 161 Conn. 531, 290 A.2d 332 at page 334).

It appears that the majority of jurisdictions, and all federal courts, which have decided this issue, have rejected the per se rule, and find that the constitution requires only that a plea be entered knowingly and voluntarily. The majority of courts which have adopted the per se rule have done so as State policy and not as a constitutional requirement.

Defendant argues that this court is bound by the decision of the Appellate Division, Second Department in People v. Pruitt, 83 A.D.2d 872, 442 N.Y.S.2d 19. Defendant interprets the Pruitt decision as setting forth a per se rule that any failure of a plea court in advising of a Boykin right prohibits the court from using a plea as a predicate felony. The District Attorney argues that the Pruitt decision was vacated by the Appellate Division, Second Department on December 1, 1981, and therefore is not binding on this court.

The court rejects both the argument of the District Attorney and the argument of defense counsel.

The fact that the Appellate Division on December 1, 1981 vacated its decision because the appeal was moot does not in any way affect the rationale of the case. A similar situation can be found with relation to the case of Matter of the District Attorney of Kings County v. Angelo G, 48 A.D.2d 576, 371 N.Y.S.2d 127. In that case the Court of Appeals remanded the case to the Appellate Division and directed it to dismiss the appeal (38 N.Y.2d 923, 382 N.Y.S.2d 981, 346 N.E.2d 820). The Appellate Division then dismissed the appeal (51 A.D.2d 1040). Nonetheless, the rationale and the original decision has consistently been upheld and consistently cited by the courts for its holding, even though the appeal had ultimately been dismissed (see, for example, Matter of Pidgeon, 80 A.D.2d 568, 435 N.Y.S.2d 763). Indeed, the Appellate Division, Second Department has cited the Pruitt decision with approval, and thus adopted that case (People v. Bennett, 86 A.D.2d 674, 446 N.Y.S.2d 381 ).

The court finds that it is bound under the doctrine of stare decisis to follow the decision in People v. Pruitt, 83 A.D.2d 872, 442 N.Y.S.2d 19, supra, even though the decision has been vacated as moot.

The court, however, disagrees with defendant's interpretation of the Pruitt, case. Pruitt, supra, is a decision limited to the facts and the record on appeal that the Appellate Division had before it. All the Appellate Division had in that case were the minutes of the plea. Absent a showing in the minutes or otherwise by the District Attorney that the plea was knowingly and intelligently entered, the court found that the failure to advise defendant of his Boykin rights mandated that the plea could not be used as a predicate felony. It did not adopt the per se rule that every failure to advise the defendant of a Boykin right violates the constitution. The court had before it a record under which it had to make the decision. In People ex rel. Woodruff v. Mancusi, 41 A.D.2d 12, 341 N.Y.S.2d 663, app. dism. 34 N.Y.2d 951, 359 N.Y.S.2d 566, 316 N.E.2d 879) the Appellate Division, Fourth Department found that a plea was knowingly and voluntarily entered even though the plea court failed to advise defendant of his Boykin rights. The Appellate Division, Second Department has cited Woodruff with approval (see, People v. Brady , 59 A.D.2d 744, 398 N.Y.S.2d 850). Nothing in the Pruitt decision indicates that the Appellate Division, Second Department disagrees with the...