People v. Lowe

• Decision Date: 25 November 2015
• Citation: 21 N.Y.S.3d 399,133 A.D.3d 1099
• Parties: The PEOPLE of the State of New York, Respondent, v. Gary LOWE, Also Known as Pops, Appellant.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 1099

21 N.Y.S.3d 399

The PEOPLE of the State of New York, Respondent,

v.Gary LOWE, Also Known as Pops, Appellant.

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

Nov. 25, 2015.

D.J. & J.A. Cirando, Syracuse (John A. Cirando of counsel), for appellant.

Gwen Wilkinson, District Attorney, Ithaca (Gary U. Surdell of counsel), for respondent.

Before: PETERS, P.J., GARRY, ROSE and CLARK, JJ.

PETERS, P.J.

Appeal from a judgment of the County Court of Tompkins County (Rowley, J.), rendered May 3, 2013, convicting defendant upon his plea of guilty of the crime of manslaughter in the first degree.

Pursuant to a negotiated plea agreement that included an appeal waiver, defendant pleaded guilty to the reduced charge of manslaughter in the first degree in satisfaction of a seven-count indictment. Prior to sentencing, defendant sent a pro se letter to County Court seeking to withdraw his guilty plea and requesting the assignment of substitute counsel. After an inquiry, the court denied the motion and imposed the agreed-upon sentence of 15 years in prison followed by five years of postrelease supervision. Defendant appeals.

Because the record does not demonstrate that defendant's guilty plea was knowing, voluntary and intelligent, the judgment of conviction must be reversed. Initially, although defendant's challenge to the voluntariness of his plea 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. Klinger, 129 A.D.3d 1115, 1116, 10 N.Y.S.3d 366 [2015] ), we note that County Court failed to adequately convey "that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; People v. Mones, 130 A.D.3d 1244, 1244–1245, 13 N.Y.S.3d 686 [2015] ). While defendant's attorney confirmed during the plea allocution that he had discussed a written plea memorandum with defendant and that defendant understood it, the memorandum similarly lumped the appeal waiver with other consequences of the plea and, in so doing, stated only that defendant "waives the right to appeal" without explaining the nature of the rights that he was waiving. Nor did the court make any inquiry into whether counsel had discussed the appeal waiver with defendant or whether defendant understood it. Accordingly, defendant did not validly waive his right to appeal (see People v. Rabideau, 130 A.D.3d 1094, 1095, 12 N.Y.S.3d 386 [2015] ; People v. Phipps, 127 A.D.3d 1500, 1501, 7 N.Y.S.3d 697 [2015], lv. denied 26 N.Y.3d 970, 18 N.Y.S.3d 607, 40 N.E.3d 585 [2015] ; see also People v. Callahan, 80 N.Y.2d 273, 280–283, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ).¹

With regard to the guilty plea, County Court failed to adequately advise defendant of the constitutional trial-related rights that he was waiving by pleading guilty, namely, "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. Mones, 130 A.D.3d at 1245–1246, 13 N.Y.S.3d 686 ; People v. Vences, 125 A.D.3d 1050, 1051, 3 N.Y.S.3d 185 [2015] ).² While there is no "mandatory catechism" required of a pleading defendant (People v. Alexander, 19 N.Y.3d 203, 219, 947 N.Y.S.2d 386, 970 N.E.2d 409 [2012] [internal quotation marks and citation omitted] ), "there must 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, quoting People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ; see People v. Klinger,

129 A.D.3d at 1116–1117, 10 N.Y.S.3d 366 ). During defendant's plea allocution, County Court merely mentioned that, if defendant were to enter a guilty plea, he would be " giving up [his] right to remain silent." The court further failed to ascertain that defendant had discussed with his attorney the trial-related rights he was waiving or the constitutional consequences of a guilty plea (see People v. Mones, 130 A.D.3d at 1245–1246, 13 N.Y.S.3d 686 ; People v. Klinger, 129 A.D.3d at 1117, 10 N.Y.S.3d 366 ; People v. Vences, 125 A.D.3d at 1051, 3 N.Y.S.3d 185 ). While we are mindful of defendant's lengthy criminal record and the fact that he has entered numerous guilty pleas over the last 2 ½ decades, the record does not demonstrate that defendant understood and waived his constitutional rights when he entered the guilty plea at issue here. Thus, we reverse the judgment of conviction and the plea is vacated. Defendant's...