People v. Harris

• Decision Date: 15 December 1983
• Citation: 61 N.Y.2d 9,471 N.Y.S.2d 61,459 N.E.2d 170
• Parties: , 459 N.E.2d 170 The PEOPLE of the State of New York, Respondent, v. Lenny HARRIS, Appellant. The PEOPLE of the State of New York, Respondent, v. Carl LEWIS, Appellant. The PEOPLE of the State of New York, Respondent, v. William RAMSEY, Appellant. The PEOPLE of the State of New York, Appellant, v. Hermino VARGAS, Respondent. The PEOPLE of the State of New York, Appellant, v. Miguel ALICEA, Respondent. The PEOPLE of the State of New York, Respondent, v. Angelo BURGO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 61

471 N.Y.S.2d 61

61 N.Y.2d 9, 459 N.E.2d 170

The PEOPLE of the State of New York, Respondent, v. Lenny HARRIS, Appellant.

The PEOPLE of the State of New York, Respondent, v. Carl LEWIS, Appellant.

The PEOPLE of the State of New York, Respondent, v. William RAMSEY, Appellant.

The PEOPLE of the State of New York, Appellant, v. Hermino VARGAS, Respondent.

The PEOPLE of the State of New York, Appellant, v. Miguel ALICEA, Respondent.

The PEOPLE of the State of New York, Respondent, v. Angelo BURGO, Appellant.

Court of Appeals of New York.

Dec. 15, 1983.

David P. Greenberg, Donald W. Searles and William E. Hellerstein, New York City, for appellant in the first above-entitled case.

David P. Greenberg and William F. Hellerstein, New York City, for appellants in the second and third above-entitled cases.

Robert M. Morgenthau, Dist. Atty., New York City (Mark Dwyer, Robert Pitler, Asst. Dist. Attys., and Curtis E. Hall, New York City, of counsel), for respondent in the first, second and third above-entitled cases.

Mario Merola, Dist. Atty., New York City (Anthony R. Dellicarri and Billie Manning, Asst. Dist. Attys., New York City, of counsel), for appellant in the fourth above-entitled case.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Rebecca J. Clement, Barbara D. Underwood and Michael J. Halberstam, Asst. Dist. Attys., Brooklyn, of counsel), for appellant in the fifth above-entitled case.

Karen Goldstein and William E. Hellerstein, New York City, for respondents in the fourth and fifth above-entitled cases.

Andrew C. Fine and William E. Hellerstein, New York City, for appellant in the sixth above-entitled case.

Robert M. Morgenthau, Dist. Atty., New York City (Mark Dwyer, Asst. Dist. Atty., and Vija Kemanis, New York City, of counsel), for respondent in the sixth above-entitled case.

OPINION OF THE COURT

JASEN, Judge.

The critical issue common to these six appeals is whether a prior felony conviction, based upon a guilty plea which was entered without the defendant having been advised by the court of the specific constitutional rights being waived by that plea, may constitute a predicate felony for the purpose of sentencing the defendant as a second felony offender. In each case, the People have sought an increased sentence of imprisonment under section 70.06 of the Penal Law, which authorizes harsher penalties for second felony offenders. Each defendant has challenged the use of his respective prior felony conviction alleging a defective guilty plea.

At the outset, it should be stated that the procedure to be followed for determining whether a defendant is a second felony offender is set forth in CPL 400.21. This section places upon the People the burden of proving beyond a reasonable doubt the existence of the previous felony conviction (CPL 400.21, subd. 7, par. [a] ), but not its constitutionality. Once the fact of the prior conviction has been established, it is then incumbent upon the defendant to allege and prove the facts underlying the claim that the conviction was unconstitutionally obtained (CPL 400.21, subd. 7, par. [b] ).

Upon reviewing the records on these appeals, we conclude, for the reasons stated, that the defendants, with the exception of Vargas, did not sustain their burdens, and the presumptions of the validity and regularity of the previous felony convictions (People v. Smyth, 3 N.Y.2d 184, 164 N.Y.S.2d 737, 143 N.E.2d 922; People v. Bell, 36 A.D.2d 406, 321 N.Y.S.2d 212, affd. 29 N.Y.2d 882, 328 N.Y.S.2d 445, 278 N.E.2d 651; McCormick, Evidence [2d ed], § 343, p 807) were not overcome by substantial evidence to the contrary (People v. Richetti, 302 N.Y. 290, 97 N.E.2d 908).

A conviction obtained in violation of one's constitutional rights may not be used to enhance punishment for another offense. (Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319.) Consistent with that principle, CPL 400.21 (subd. 7, par. [b] ) provides that "[a] previous conviction * * * which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate felony conviction." Likewise, this court has on numerous occasions repeated that "an alleged second or third felony offender could question the validity of the predicate conviction at the time he was resentenced." (People v. Wilkins, 28 N.Y.2d 213, 218, 321 N.Y.S.2d 87, 269 N.E.2d 803; see, also, People v. Jones, 17 N.Y.2d 404, 271 N.Y.S.2d 240, 218 N.E.2d 291; People v. Machado, 17 N.Y.2d 440, 266 N.Y.S.2d 525, 213 N.E.2d 804.)

But this court has never held, and we refuse to so hold now, that a predicate conviction upon a guilty plea is invalid solely because the Trial Judge failed to specifically enumerate all the rights to which the defendant was entitled and to elicit from him or her a list of detailed waivers before accepting the guilty plea. There is no requirement for a "uniform mandatory catechism of pleading defendants." (People v. Nixon, 21 N.Y.2d 338, 353, 287 N.Y.S.2d 659, 234 N.E.2d 687.) Though a rigorous and detailed colloquy may be appropriate in certain instances, under most ordinary circumstances such questioning by the Trial Judge would be an unnecessary formalism. The seriousness of the crime, the competency, experience and actual participation by counsel, the rationality of the "plea bargain", and the pace of the proceedings in the particular criminal court are among the many factors which the Trial Judge must consider in exercising discretion. (People v. Nixon, supra, at p. 353, 287 N.Y.S.2d 659, 234 N.E.2d 687.) But as we have emphasized on a previous occasion, "there is no requirement that the Judge conduct a pro forma inquisition in each case on the off-chance that a defendant who is adequately represented by counsel * * * may nevertheless not know what he is doing." (People v. Francis, 38 N.Y.2d 150, 154, 379 N.Y.S.2d 21, 341 N.E.2d 540.) Overall, a sound discretion, exercised in cases on an individual basis is preferable to a ritualistic uniform procedure. (People v. Nixon, supra, 21 N.Y.2d at p. 355, 287 N.Y.S.2d 659, 234 N.E.2d 687.)

On the other hand, a record that is silent will not overcome the presumption against waiver by a defendant of constitutionally guaranteed protections. (People v. Rodriguez, 50 N.Y.2d 553, 557, 429 N.Y.S.2d 631, 407 N.E.2d 475.) To be sure, the record must show "an intentional relinquishment or abandonment of a known right or privilege." (Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461; Barker v. Wingo, 407 U.S. 514, 526, 92 S.Ct. 2182, 2190, 33 L.Ed.2d 101.) As the United States Supreme Court held in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70: "Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused * * * intelligently and understandingly rejected [his constitutional rights]. Anything less is not waiver."

The key issue in these cases, then, is whether the defendants knowingly, voluntarily and intelligently relinquished their rights upon their guilty pleas. Addressing a related question, Chief Judge Breitel, speaking for this court in Chaipis v. State Liq. Auth., 44 N.Y.2d 57, 63-64, 404 N.Y.S.2d 76, 375 N.E.2d 32, observed: "It is a truism that a guilty plea, which waives even many constitutional rights, must be taken only when the defendant has knowledge and understanding of the consequences of the plea. [Citation omitted.] If the plea be coerced, or if defendant's knowledge of its consequences be not explored sufficiently, the plea may be subject to vacation on proper and timely motion."

Each of the defendants here contends that his guilty plea which resulted in a prior felony conviction was unconstitutionally obtained. They each mistakenly rely on the United States Supreme Court's decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 for the proposition that a Trial Judge must first expressly apprise a defendant of the right to a jury trial, the privilege against compulsory self incrimination and the right to confront accusers, that the Judge must inquire on the record whether the defendant wishes to waive each of them, and that the defendant must do so explicitly before a guilty plea may be accepted. While this practice might facilitate subsequent determinations on the record of the voluntariness of a guilty plea, "[i]n all such inquiries, '[m]atters of reality, and not mere ritual, should be controlling.' " (McCarthy v. United States, 394 U.S. 459, 467-468, n. 20, 89 S.Ct. 1166, 1171-1172, n. 20, 22 L.Ed.2d 418; Kennedy v. United States, 397 F.2d 16, 17.)

In Boykin, the Supreme Court reversed a conviction upon a guilty plea where the record disclosed that the Trial Judge had asked no questions concerning the guilty plea and the defendant himself never addressed the court. Indeed, the record was virtually silent on the circumstances surrounding the entry of the plea and, consequently, it failed utterly to reveal any evidence that the defendant voluntarily and understandingly entered his plea. (Boykin v. Alabama, supra, 395 U.S. at p. 244, 89 S.Ct. at p. 1712.) That court held that it was error "plain on the face of the record" for the Trial Judge to accept the guilty plea "without an affirmative showing that it was intelligent and voluntary." (Boykin v. Alabama, supra, at p. 242, 89 S.Ct. at p. 1711.)

Defendants' reliance on Boykin centers primarily on the following portion of that opinion: "Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d...