People v. Tyrell
| Citation | 2013 N.Y. Slip Op. 08288,4 N.E.3d 346,981 N.Y.S.2d 336,22 N.Y.3d 359 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Cavell Craig TYRELL, Appellant. (App Term No. 10–290.) The People of the State of New York, Respondent, v. Cavell Craig Tyrell, Appellant. (App Term No. 10–288.). |
| Decision Date | 12 December 2013 |
| Court | New York Court of Appeals |
22 N.Y.3d 359
4 N.E.3d 346
981 N.Y.S.2d 336
2013 N.Y. Slip Op. 08288
The PEOPLE of the State of New York, Respondent,
v.
Cavell Craig TYRELL, Appellant. (App Term No. 10–290.)
The People of the State of New York, Respondent,
v.
Cavell Craig Tyrell, Appellant. (App Term No. 10–288.).
Court of Appeals of New York.
Dec. 12, 2013.
Steven Banks, The Legal Aid Society, New York City (Harold v. Ferguson, Jr., of counsel), for appellant in the first and second above-entitled actions.
Cyrus R. Vance, Jr., District Attorney, New York City (Ryan Gee and Patrick J. Hynes of counsel), for respondent in the first and second above-entitled actions.
GRAFFEO, J.
[4 N.E.3d 347]
In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court held that a defendant who enters a guilty plea must voluntarily and intelligently waive several federal constitutional rights, namely, the right to a trial by jury, the right to confront one's accusers and the privilege against self-incrimination. Because the records in the cases before us are silent as to defendant's waiver of these fundamental rights, the pleas must be vacated.
In the first of two appeals involving defendant Cavell Craig Tyrell (County index No. 570026/10), a police officer observed defendant and another person sell a small quantity of marihuana to two individuals in February 2009. The officer immediately stopped all four participants, recovering money and a small bag of marihuana from defendant, and another bag of marihuana from one of the buyers. Defendant was charged by misdemeanor complaint with criminal sale of marihuana in the fourth degree (Penal Law § 221.40) and criminal possession of marihuana in the fifth degree (Penal Law § 221.10[1] ).
Defendant appeared for arraignment, with counsel, two days after his arrest. The prosecutor offered a sentence of time served in exchange for a guilty plea. In response, defense counsel queried whether a “marijuana ACD” (adjournment in contemplation of dismissal) was available. The prosecutor answered in the negative. Defense counsel then stated that “[w]e have a disposition. At this time [defendant] authorizes me to withdraw his previously entered plea of not guilty and enter a plea of guilty to Penal Law Section 221.10, criminal possession of marijuana in the fifth degree.” The colloquy concluded with the court's imposition of the sentence: “Time served. Enter judgment.”
Defendant appealed from the judgment of conviction and sentence, seeking vacatur of his plea on the basis that it was not voluntary, knowing and intelligent. Specifically, he asserted that the plea was invalid because the record did not affirmatively demonstrate the waiver of his Boykin rights.
The Appellate Term affirmed (37 Misc.3d 16, 952 N.Y.S.2d 370 [App.Term, 1st Dept.2012] ), reasoning that defendant failed to preserve his Boykin claim for appellate review by not bringing a postallocution motion to withdraw the plea. As an “alternative holding,” the court found that the plea colloquy evinced a voluntary, knowing and intelligent plea. A Judge of this Court granted defendant leave to appeal (19 N.Y.3d 1105, 955 N.Y.S.2d 561, 979 N.E.2d 822 [2012] ), and we now reverse.
[4 N.E.3d 348]
II
In the second case (County index No. 570027/10), the same defendant was arrested in October 2009 following his participation in a buy-and-bust operation involving the sale of marihuana to an undercover officer. As a result, defendant was charged in a misdemeanor complaint with criminal sale of marihuana in the fourth degree (Penal Law § 221.40).
Later that same day, defendant appeared with counsel for arraignment. At the outset of the proceeding, the prosecutor offered defendant a sentence of 15 days in jail in exchange for a guilty plea to the crime charged. Defendant, through counsel, refused the offer. After a discussion regarding potential bail terms, defense counsel informed the court that defendant would be willing to plead guilty for time served. The court rejected the request, but offered a jail sentence of 10 days. Defense counsel responded that defendant was willing to accept that offer. Defendant then stated that he agreed to plead guilty and acknowledged his participation in the drug sale. The court accepted defendant's plea and immediately imposed the 10–day jail sentence.
Defendant appealed from the judgment of conviction and sentence, arguing that his plea must be vacated because it was not entered voluntarily, knowingly and intelligently. As in the first case, he urged that the waiver of his Boykin rights was nonexistent.
Affirming the conviction (36 Misc.3d 133[A], 2012 N.Y. Slip Op. 51309[U], 2012 WL 2897057 [App.Term, 1st Dept.2012] ), the Appellate Term concluded that defendant's claim was unpreserved because he did not file a CPL 220.60(3) motion to withdraw or a CPL 440.10 motion to vacate. Alternatively, the court reviewed the plea minutes and determined that the plea was valid. A Judge of this Court granted defendant leave to appeal, and we now reverse.
As a threshold matter, the People contend that the Appellate Term correctly found that defendant's claims are unpreserved in both cases. Relying on People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988), the People maintain that defendant was required to file a postallocution motion to preserve his contentions and that his failure to do so renders us without authority to review them. Defendant counters that we should analogize these cases to People v. Louree, 8 N.Y.3d 541, 838 N.Y.S.2d 18, 869 N.E.2d 18 (2007), where we held that a defendant can raise a Catu* violation—i.e., a claim that the plea was involuntary because of the trial court's failure to inform defendant of a term of postrelease supervision—on direct appeal notwithstanding the absence of a postallocution motion. Under the particular circumstances of these cases, we conclude that defendant's Boykin claims are reviewable on direct appeal.
In Lopez, we stated that “in order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea under CPL 220.60(3) or a motion to vacate the judgment of conviction under CPL 440.10” ( Lopez, 71 N.Y.2d at 665, 529 N.Y.S.2d 465, 525 N.E.2d 5). Subsequent case law has made clear that a postallocution motion is generally required to raise other “claim[s] that a guilty plea is invalid”—even those unrelated to the factual recitation—and that “[u]nder certain circumstances, this preservation requirement extends to challenges to the voluntariness
[4 N.E.3d 349]
of a guilty plea” ( People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013];see also People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 [1999];People v. Johnson, 82 N.Y.2d 683, 685, 601 N.Y.S.2d 468, 619 N.E.2d 405 [1993] ).
But in Lopez we carved out a narrow exception to the preservation requirement for the “rare case” in which “the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea” ( Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). We also recognized a limited exception in Louree, concluding that a defendant can raise a Catu claim on direct appeal because of “the actual or practical unavailability of either a motion to withdraw the plea” or a “motion to vacate the judgment of conviction” ( Louree, 8 N.Y.3d at 546, 838 N.Y.S.2d 18, 869 N.E.2d 18;see also Peque, 22 N.Y.3d at 182–183, 980 N.Y.S.2d 280, 3 N.E.3d 617 [“Taken together, Lopez and Louree establish that where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record, preservation is not required. At the same time, there are significant constraints on this exception to the preservation doctrine”] ).
Here, whether we characterize these cases as falling within the Lopez/Louree exception or treat defendant's claims as implicating rights of a constitutional dimension directed to the heart of the proceedings—i.e., a mode of proceedings error for which preservation is not required—defendant's Boykin claims are reviewable on direct appeal. Contrary to the Appellate Term's suggestion, defendant could not have brought a CPL 220.60(3) plea withdrawal motion in either case because the plea and sentence occurred during the same proceeding ( seeCPL 220.60[3] [providing that a motion to withdraw must be made “ before the imposition of sentence”] ). Likewise, he could not have filed a CPL 440.10 motion because the error in these cases was “clear from the face of the trial record” ( People v. Stewart, 16 N.Y.3d 839, 840, 923 N.Y.S.2d 404, 947 N.E.2d 1182 [2011];see also People v. Cooks, 67 N.Y.2d 100, 104, 500 N.Y.S.2d 503, 491 N.E.2d 676 [1986];CPL 440.10[2] [c] ). Putting aside any practical difficulties in defendant's ability to bring a postallocution motion, the complete absence of any indication that defendant waived his Boykin rights could also be viewed as a mode of proceedings error for which preservation is not required. We need not, however, decide which category applies because on these records, defendant's Boykin claims are clearly reviewable on...
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