People v. Klinger

• Decision Date: 04 June 2015
• Docket Number: 106990
• Citation: 10 N.Y.S.3d 366,2015 N.Y. Slip Op. 04682,129 A.D.3d 1115
• Parties: The PEOPLE of the State of New York, Respondent, v. Harold KLINGER, Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1115

10 N.Y.S.3d 366

2015 N.Y. Slip Op. 04682

The PEOPLE of the State of New York, Respondent

v.Harold KLINGER, Appellant.

106990

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

June 4, 2015.

Orseck Law Offices, PLLC, Liberty (Gerald Orseck of counsel), for appellant.

James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), for respondent.

Before: McCARTHY, J.P., LYNCH, DEVINE and CLARK, JJ.

Opinion

DEVINE, J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered April 22, 2014, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.

In satisfaction of a four-count indictment, defendant pleaded guilty to attempted criminal possession of a weapon in the second degree and waived his right to appeal. The plea agreement contemplated that defendant would be sentenced to a split sentence of six months in jail and five years of probation, with three months of additional jail time to be imposed upon his guilty plea to a separate charge of driving while intoxicated. Defendant thereafter moved to withdraw his guilty plea. County Court denied the motion, finding that defendant understood the rights that he was giving up by pleading guilty and had voluntarily elected to do so. County Court imposed the agreed-upon sentence, and defendant now appeals.

Defendant argues that his plea was invalid because County Court failed to advise him of the rights that he would be waiving by pleading guilty, including “the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses” (People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013], citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ; see People v. Vences, 125 A.D.3d 1050, 1051, 3 N.Y.S.3d 185 [2015] ). This argument is unpreserved given defendant's failure to advance it in his motion to withdraw his plea (see People v. Devault, 124 A.D.3d 1140, 1141, 1 N.Y.S.3d 579 [2015], lv. denied 25 N.Y.3d 989, 10 N.Y.S.3d 532, 32 N.E.3d 969 [2015] ; People v. Escalante, 16 A.D.3d 984, 984–985, 792 N.Y.S.2d 253 [2005], lvs. denied 5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669 [2005], 5 N.Y.3d 793, 801 N.Y.S.2d 814, 835 N.E.2d 674 [2005] ). While it is somewhat unclear as to the precise characterization of this type of error (see People v. Tyrell, 22 N.Y.3d at 364, 981 N.Y.S.2d 336, 4 N.E.3d 346 ), it is undoubtedly one serious enough to warrant reversal in the interest of justice (see People v. Vences, 125 A.D.3d at 1051 n., 3 N.Y.S.3d 185 ; but see People v. Jackson, 123 A.D.3d 634, 634–635, 999 N.Y.S.2d 73 [2014] ). Inasmuch as this argument further relates to the question of whether defendant knowingly, intelligently and voluntarily elected to give up his rights and plead guilty (see People v. Tyrell, 22 N.Y.3d at 365–366, 981 N.Y.S.2d 336, 4 N.E.3d 346 ; People v. Fiumefreddo, 82 N.Y.2d 536, 543–544, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ), it survives even a valid appeal waiver (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ; People v. Miner, 120 A.D.3d 1449, 1449, 991 N.Y.S.2d 679 [2014] ).

Turning to the merits, a trial court is neither required “to specifically enumerate all the rights to which the defendant was entitled [or] to elicit ... detailed waivers before accepting [a] guilty plea” (People v. Tyrell, 22 N.Y.3d at 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [internal quotation marks and citation omitted] ), nor engage in “a uniform mandatory catechism of pleading defendants” (People v. Alexander, 19 N.Y.3d 203, 219, 947N.Y.S.2d 386, 970 N.E.2d 409 [2012] [internal quotation marks and citation omitted] ). There must, however, “be ‘an affirmative showing on the record’ that the defendant waived his [or her] constitutional rights” (People v. Tyrell, 22 N.Y.3d at 365, 981 N.Y.S.2d 336, 4 N.E.3d 346, quoting People v. Fiumefreddo, 82 N.Y.2d at 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; see People v. Moore, 24 N.Y.3d 1030, 1031–1032, 998 N.Y.S.2d 140, 22 N.E.3d 1008 [2014] ). County Court made no effort to explain the rights that defendant was giving up by pleading guilty, making nothing more than a passing reference to them when asking if defendant had “any questions.” County Court further failed to establish that “defendant consulted with his attorney about the constitutional consequences of a...