People v. Mones, 105753

• Decision Date: 16 July 2015
• Docket Number: 105753
• Citation: 130 A.D.3d 1244,13 N.Y.S.3d 686,2015 N.Y. Slip Op. 06174
• Parties: The PEOPLE of the State of New York, Respondent, v. Adam MONES, Appellant.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1244
13 N.Y.S.3d 686
2015 N.Y. Slip Op. 06174

The PEOPLE of the State of New York, Respondent
v.
Adam MONES, Appellant.

105753

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

July 16, 2015.

13 N.Y.S.3d 687

John Ferrara, Monticello, for appellant.

James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.; ROSE, J., vouched in.

Opinion

McCARTHY, J.P.

130 A.D.3d 1244

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered April 12, 2012, (1) convicting defendant upon his plea of guilty of the crime of burglary in the second degree and of violating probation, and (2) which revoked defendant's probation and imposed a sentence of imprisonment.

Pursuant to a negotiated agreement that included a waiver of appeal, defendant pleaded guilty to a superior court information charging him with burglary in the second degree and admitted to violating probation. He was sentenced in accordance therewith to an aggregate prison term of 8 ½ years to be followed by five years of postrelease supervision. Defendant now appeals. Because defendant's guilty plea was not knowing, voluntary and intelligent, we reverse.

Initially, we find that defendant's waiver of his right to appeal was not valid. During the plea colloquy, 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. Vences, 125 A.D.3d 1050, 1051, 3 N.Y.S.3d 185 [2015], quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v.

130 A.D.3d 1245

Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ). A written waiver executed by defendant the same day as the plea colloquy suffers from the same deficiency and, in any event, “there was ‘no attempt by the court to ascertain on the record an acknowledgment from defendant that he had, in fact, signed the waiver or that, if he had, he was aware of its contents' ” (People v. Vences, 125 A.D.3d at 1051–1052, 3 N.Y.S.3d 185, quoting People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ).

Turning to defendant's guilty plea, County Court also failed to properly inform defendant of his trial rights. Although defendant failed to advance this issue via an appropriate postallocution motion, the Court of Appeals has suggested that a trial court's failure to properly inform a defendant as to his trial rights during a plea colloquy “could ... be viewed as a mode of proceedings error for which preservation is not required” (People v. Tyrell, 22 N.Y.3d 359, 364, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ). In any event, we exercise this Court's interest of justice jurisdiction to reverse the judgment

13 N.Y.S.3d 688

(see People v. Klinger, 129 A.D.3d 1115, 1116–17, 10 N.Y.S.3d 366, 367 [2015] ; People v. Vences, 125 A.D.3d at 1051 n. 1, 3 N.Y.S.3d 185 ). We recognize that a trial judge is not 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 [internal quotation marks and citation omitted] ), and there is no “uniform mandatory catechism of pleading defendants” (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] ). However, 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. Moore, 24 N.Y.3d 1030, 1031, 998 N.Y.S.2d 140, 22 N.E.3d 1008 [2014] ).

Here, the plea colloquy took place over a two-day period. On the first day, after the prosecutor recited the plea terms, County Court informed defendant that he would be “giving up [his] rights to proceed to a trial [and] to appeal.” Defense counsel then requested additional time to speak with defendant, and the case was adjourned until the following morning. However, when the proceedings resumed, there was no affirmative indication that defendant had actually “consulted with his attorney” or that any such consultation during the adjournment was “about the constitutional consequences of a guilty plea” (People v. Tyrell, 22 N.Y.3d at 365, 981 N.Y.S.2d 336 [emphasis added]; see People v. Vences, 125 A.D.3d at 1051, 3 N.Y.S.3d 185 ; compare People v. Ocasio–Rosario, 120 A.D.3d 1463, 1464, 991 N.Y.S.2d 905 [2014] ). Instead, the prosecutor again recited the plea terms and County Court simply asked defendant

130 A.D.3d 1246

if anyone was forcing him to give up “ those rights.” Defendant responded in the negative and the court then stated, “Trial rights, grand jury right, appellate rights, et cetera?” to which defendant again replied “no.” No explanation of the aforementioned rights or the consequences of defendant's waiver was provided. Because “[p]resuming waiver from a silent record is impermissible” (Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] [internal quotation marks and citation omitted]; see People v. Tyrell, 22 N.Y.3d at 365–366, 981 N.Y.S.2d 336 ), and this record is silent as to whether defendant was informed of the constitutional trial rights that he was giving up, there is insufficient evidence to establish an adequate waiver of such rights (see People v. Tyrell, 22 N.Y.3d at 365–366, 981 N.Y.S.2d 336 ; People v. Klinger, 129 A.D.3d 1115, 10 N.Y.S.3d at 368 ; People v. Vences, 125 A.D.3d at 1051, 3 N.Y.S.3d 185 ). In light of the foregoing, defendant's remaining contentions are academic.

ROSE and CLARK, JJ., concur.

DEVINE, J. (dissenting).

We agree with our colleagues that defendant did not execute a valid waiver of his right to appeal. Because we are persuaded that the plea itself was entered into in a knowing, voluntary and intelligent manner, however, we dissent.

County Court was indeed obliged to advise defendant of the rights that he would be forgoing by his guilty plea, 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...