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

34 N.Y.3d 1118

141 N.E.3d 131

118 N.Y.S.3d 63

The PEOPLE of the State of New York, Respondent,

v.Sixtus UDEKE, Appellant.

No. 104

Court of Appeals of New York.

December 19, 2019

OPINION OF THE COURT MEMORANDUM.

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] ).

RIVERA, J. (dissenting).

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.

I.

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:

"THE COURT: Do you understand that you have the right to a trial by jury?

[DEFENDANT]: By jury?

"THE COURT: A jury trial, that's correct. Do you understand that you have that right?

"[DEFENSE COUNSEL]: Well, it was represented to him that this would be reduced to a B misdemeanor.

"THE COURT: A trial by a jury or a judge, depending on how the People proceeded. Do you understand that you have that right?

"[DEFENDANT]: Yes, your Honor.

"THE COURT: Do you understand that by pleading guilty you are giving up the right to have the trial?

"[DEFENDANT]: Yes, your Honor."

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] ).

II.

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

Conviction on that charge subjects him to deportation under 8 USC § 1227(a)(2)(E)(ii), which provides that any noncitizen

"who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable."

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] ).

"A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.... Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence" ( 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, ...