People v. Demkovich

• Decision Date: 17 January 2019
• Docket Number: 108444
• Citation: 168 A.D.3d 1221,91 N.Y.S.3d 801
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey S. DEMKOVICH, Appellant.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 1221

91 N.Y.S.3d 801

The PEOPLE of the State of New York, Respondent,

v.Jeffrey S. DEMKOVICH, Appellant.

108444

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 18, 2018

Decided and Entered: January 17, 2019

MEMORANDUM AND ORDER

Clark, J.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 criminal possession of a controlled substance in the third degree in full satisfaction of the indictment. In accordance with the negotiated plea agreement, County Court sentenced defendant, as a second felony offender, to an aggregate term of imprisonment of nine years, followed by five years of postrelease supervision. Defendant now appeals.

Defendant contends that his plea was not knowing, voluntary and intelligent because County Court 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 appropriate postallocution motion (see People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Haenelt, 161 A.D.3d 1489, 1489–1490, 77 N.Y.S.3d 770 [2018], lv denied 31 N.Y.3d 1148, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018] ; People v. Tucker, 160 A.D.3d 1303, 1303, 75 N.Y.S.3d 358 [2018], lv denied 31 N.Y.3d 1122, 81 N.Y.S.3d 382, 106 N.E.3d 765 [2018] ; compare People v. Glover, ––– A.D.3d ––––, 91 N.Y.S.3d 607 [decided herewith] ), we nonetheless exercise our interest of justice jurisdiction to take corrective action and reverse the judgment (see CPL 470.15[3][c] ; People v. Holmes, 162 A.D.3d 1117, 1118, 78 N.Y.S.3d 751 [2018] ; People v. Herbert, 147 A.D.3d 1208, 1210, 47 N.Y.S.3d 500 [2017] ). Although trial courts are not required to adhere to a rigid script or formula prior to accepting a defendant's guilty plea, the record must affirmatively demonstrate that the defendant waived his or her constitutional trial-related rights – namely, the privilege against self-incrimination, the right to a jury trial and the right to be confronted by witnesses (see People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; People v. Cotto, 156 A.D.3d 1063, 1064, 66 N.Y.S.3d 742 [2017] ; People v. Lowe, 133 A.D.3d 1099, 1100, 21 N.Y.S.3d 399 [2015] ).

Here, during the abbreviated plea colloquy, County Court briefly advised defendant that, if he were to plead guilty, he would be giving up his "right to a trial, ... the right to testify 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 would be waiving the privilege against self-incrimination by entering a guilty plea (see People v. Holmes, 162 A.D.3d at 1118, 78 N.Y.S.3d 751 ; People v. Cotto, 156 A.D.3d at 1064, 66 N.Y.S.3d 742 ). Further, the court failed to obtain any assurance that defendant had discussed with counsel the trial-related rights that are automatically forfeited by pleading guilty or the constitutional implications of a guilty plea (see People v. Herbert, 147 A.D.3d at 1210, 47 N.Y.S.3d 500 ; People v. Lowe, 133 A.D.3d at 1101, 21 N.Y.S.3d 399 ; compare People v. Ocasio–Rosario, 120 A.D.3d 1463, 1464, 991 N.Y.S.2d 905 [2014], lvs denied 25 N.Y.3d 1168, 15 N.Y.S.3d 300, 36 N.E.3d 103 [2015], 26 N.Y.3d 1148, 32 N.Y.S.3d 62, 51 N.E.3d 573 [2016] ). In the absence of an affirmative showing on the record that defendant understood and voluntarily waived his constitutional rights when he pleaded guilty, the plea is invalid and must be vacated (see People v. Holmes, 162 A.D.3d at 1118, 78 N.Y.S.3d 751 ; People v. Herbert, 147 A.D.3d at 1211, 47 N.Y.S.3d 500 ; People v. Klinger, 129 A.D.3d 1115, 1117, 10 N.Y.S.3d 366 [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 the unpreserved error cited by the majority, standing alone, necessitates this Court exercising its interest of justice jurisdiction to reverse the judgment of conviction as there is nothing compelling about this case that "cries out for fundamental justice beyond the confines of conventional considerations" ( People v. Williams, 145 A.D.3d 100, 107, 40 N.Y.S.3d 94 [2016] [internal quotation marks and citation omitted]; see People v. Matthew NN., 156 A.D.3d 1119, 1120, 68 N.Y.S.3d 189 [2017] ). Exercise of this Court's interest of justice jurisdiction should be rare and it should be used sparingly, upon a case-by-case review, as such jurisdiction was "not designed or intended to be used to resolve public policy concerns or for a system-wide fix" ( People v. Williams, 145 A.D.3d at 107, 40 N.Y.S.3d 94 ; see People v. Harmon, 181 A.D.2d 34, 36, 586 N.Y.S.2d 922 [1992] ), i.e., addressing repetitive issues concerning arguably deficient plea colloquies by certain trial courts. Although the Court of Appeals has made plain that it is a "vital responsibility" of the trial courts to ensure that defendants who 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 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ). In our view, until the Legislature or the Court of Appeals elects to require that trial courts follow a particular catechism in taking a guilty plea, it is not appropriate for this Court to exercise its interest of justice jurisdiction to reverse a judgment of conviction each time it determines that a trial court has failed to completely advise a defendant of each and every constitutional right that he or she is foregoing when taking a guilty plea, particularly where, as here, the defendant voiced no objection to the content of the allocution either at the time it occurred or in any subsequent postplea motion to the trial court.

Here, defendant failed to make an appropriate postallocution motion on the ground that his plea was not knowingly, voluntarily or intelligently entered into, nor...