People v. Udeke
Decision Date | 19 December 2019 |
Docket Number | No. 104,104 |
Parties | The PEOPLE of the State of New York, Respondent, v. Sixtus UDEKE, Appellant. |
Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Term should be affirmed.
We reject defendant's threshold challenge to the facial sufficiency of the accusatory instrument charging him with second-degree criminal contempt. A fair reading of the allegations and reasonable inferences drawn therefrom provide reasonable cause to believe that he intended to violate the stay-away provision of the order of protection by purposely being physically present in the close confines of a subway turnstile with the protected person in order to avoid paying a subway fare (see People v. Kalin, 12 N.Y.3d 225, 228, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009] ; CPL 170.65[3] ).
Further, on this record, the court's plea allocution was sufficient to establish the voluntariness of defendant's guilty plea. Defendant pleaded guilty to a class B misdemeanor in satisfaction of two accusatory instruments charging him with class A misdemeanors. The class A misdemeanor counts in the instruments were not amended to lesser offenses as was done in People v. Suazo, 32 N.Y.3d 491, 494, 93 N.Y.S.3d 629, 118 N.E.3d 168(2018) ; cf. People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786(1982). Here, the record as a whole demonstrates defendant's knowing, voluntary and intelligent waiver of his constitutional rights and there is no basis to disturb his guilty plea (see People v. Sougou, 26 N.Y.3d 1052, 1055, 23 N.Y.S.3d 121, 44 N.E.3d 196 [2015] ; People v. Conceicao, 26 N.Y.3d 375, 383–384, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ).
In accordance with the law at the time of defendant Sixtus Udeke's plea allocution, the trial court told defendant, a noncitizen, that he had no right to a trial by jury for a deportation-eligible Class B misdemeanor. While defendant's leave application to this Court was pending, we issued a new rule in People v. Suazo, 32 N.Y.3d 491, 93 N.Y.S.3d 629, 118 N.E.3d 168(2018), recognizing precisely the right defendant was told he did not have during the plea colloquy: that noncitizens like defendant have the right to a trial by jury for crimes carrying the potential penalty of deportation. That rule applies retroactively to defendant's appeal, and it leads to the conclusion that his guilty plea is invalid because he could not have knowingly and intelligently waived a right the court said he did not have. Therefore, I dissent from the majority decision that the guilty plea should stand.
Defendant is a lawful permanent resident who had been residing in the United States for several years when he was arrested for jumping a turnstile with his wife, who had an order of protection against him. He was charged in two separate criminal complaints: one containing the Class A misdemeanor of theft of services ( Penal Law § 165.15[3] ) and the Class B misdemeanor of criminal trespass in the third degree ( Penal Law § 140.10[a] ); and another containing two counts of criminal contempt in the second degree ( Penal Law § 215.50[3] ), a Class A misdemeanor.
At a joint plea and sentencing hearing, defendant waived prosecution by information and pleaded guilty to attempted second-degree contempt, a B misdemeanor, in exchange for a conditional discharge, a two-year order of protection in favor of his wife, and dismissal of the theft of services and third-degree criminal trespass charges, which the People had previously moved to consolidate with the criminal contempt charges. The following exchange occurred during the plea colloquy:
Later in the colloquy, the court asked defendant whether he understood that the conviction could potentially impact his ability to remain in the United States, and might lead to his deportation, denial of citizenship or other consequences affecting his immigration status. Defendant replied he understood. He then admitted to attempting to intentionally disobey the order of protection commanding him to cease all communication and contact with his wife. The court sentenced defendant in accordance with the plea agreement.
On appeal, defendant argued, amongst other things and as relevant here, that his plea was involuntary because the court incorrectly advised him as to his right to a jury trial. The Appellate Term affirmed the judgment of conviction, and in reliance on the First Department's decision in People v. Suazo, 146 A.D.3d 423, 423, 45 N.Y.S.3d 31(1st Dept. 2017), lv. granted , 29 N.Y.3d 1087, 64 N.Y.S.3d 177, 86 N.E.3d 264(2017), revd. , 32 N.Y.3d 491, 93 N.Y.S.3d 629, 118 N.E.3d 168(2018), rejected defendant's challenge to the plea, both because it concluded that he was not entitled to a jury trial on the Class B misdemeanor to which he pleaded guilty, and because in any event, the omission of the word "jury" in the colloquy did not render the plea invalid ( 59 Misc.3d 136[A], 101 N.Y.S.3d 701 [App. Term 2018], citing Suazo, 146 A.D.3d 423, 45 N.Y.S.3d 31 ). After we reversed the Appellate Division's order in Suazo, a Judge of this Court granted defendant leave to appeal ( 32 N.Y.3d 1129, 93 N.Y.S.3d 267, 117 N.E.3d 826 [2018] ).
Defendant argues that he did not enter his plea knowingly because during the plea colloquy, the court misinformed him that he did not have a right to a jury trial if the People proceeded on the second-degree contempt B misdemeanor, though as a noncitizen subject to possible deportation if he pleaded guilty to that crime, he had a right to a trial by jury under Suazo. Defendant is correct that Suazo applies to his appeal and the colloquy is constitutionally defective.1
In Suazo, we held that a noncitizen defendant charged with a crime that carries the potential penalty of deportation has a Sixth Amendment right to a trial by jury ( 32 N.Y.3d 491, 508, 93 N.Y.S.3d 629, 118 N.E.3d 168 [2018] ). That new constitutional rule of criminal law applies retroactively to all cases pending on direct review or not yet final, as in defendant's case, in accordance with the Supreme Court's holding in Griffith v. Kentucky that a new rule for the conduct of criminal prosecutions applies retroactively to all nonfinal cases, even where the rule is a clear break from the past ( 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 [1987] ). The People do not argue to the contrary. Accordingly, if defendant establishes he is a noncitizen and the court misinformed him of the right to a trial by jury during the plea colloquy, he may challenge his plea based on our voluntary plea jurisprudence and the holding in Suazo.
At the time defendant pleaded guilty to the B misdemeanor of attempted contempt in the second degree, he was a noncitizen.2
Turning to the voluntariness of the plea, "[t]he established rule is that a guilty plea will be upheld as valid if it was entered voluntarily, knowingly and intelligently" ( People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993], citing People v. Moissett, 76 N.Y.2d 909, 910–911, 563 N.Y.S.2d 43, 564 N.E.2d 653 [1990] ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). "When a defendant opts to plead guilty, [they] must waive certain constitutional rights—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] ).
( Duncan v. Louisiana, 391 U.S. 145, 155, 88 S.Ct. 1444, 20 L.Ed.2d 491 [1968] ).
"[T]o constitute a knowing, voluntary and intelligent plea, there must be ‘an affirmative showing on the record’ that the defendant waived [their] constitutional rights" ( Tyrell, 22 N.Y.3d at 365, 981 N.Y.S.2d 336, 4 N.E.3d 346, citing Fiumefreddo, 82 N.Y.2d at 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; see Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ). While "we have repeatedly rejected a formalistic approach to guilty pleas" ( Tyrell, 22 N.Y.3d at 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 ), "the Trial Judge has a vital responsibility ‘to make sure [that the accused] has full understanding of what the plea connotes and of its consequence’ " ( People v. Harris, 61 N.Y.2d 9, 19, 471 N.Y.S.2d 61, 459 N.E.2d 170 [1983], quoting Boykin, 395 U.S. at 242, ...
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