Opinion
108444
01-17-2019
The PEOPLE of the State of New York, Respondent, v. Jeffrey S. DEMKOVICH, Appellant.
MEMORANDUM AND ORDER
In August 2015, defendant was charged by indictment with kidnapping in the second degree, rape in the third degree and criminal possession of a controlled substance in the third degree. Defendant thereafter pleaded guilty to attempted kidnapping in the second degree and criminal possession of a controlled substance in the third degree in full satisfaction of the indictment. In accordance with the negotiated plea agreement, County Court sentenced defendant, as a second felony offender, to an aggregate term of imprisonment of nine years, followed by five years of postrelease supervision. Defendant now appeals.
Defendant contends that his plea was not knowing, voluntary and intelligent because County Court failed to advise him of the constitutional rights he was waiving by pleading guilty. Although defendant failed to preserve this contention for our review through an appropriate postallocution motion (see People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Haenelt, 161 A.D.3d 1489, 1489–1490, 77 N.Y.S.3d 770 [2018], lv denied 31 N.Y.3d 1148, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018] ; People v. Tucker, 160 A.D.3d 1303, 1303, 75 N.Y.S.3d 358 [2018], lv denied 31 N.Y.3d 1122, 81 N.Y.S.3d 382, 106 N.E.3d 765 [2018] ; compare People v. Glover, ––– A.D.3d ––––, 91 N.Y.S.3d 607 [decided herewith] ), we nonetheless exercise our interest of justice jurisdiction to take corrective action and reverse the judgment (see CPL 470.15[3][c] ; People v. Holmes, 162 A.D.3d 1117, 1118, 78 N.Y.S.3d 751 [2018] ; People v. Herbert, 147 A.D.3d 1208, 1210, 47 N.Y.S.3d 500 [2017] ). Although trial courts are not required to adhere to a rigid script or formula prior to accepting a defendant's guilty plea, the record must affirmatively demonstrate that the defendant waived his or her constitutional trial-related rights – namely, the privilege against self-incrimination, the right to a jury trial and the right to be confronted by witnesses (see People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; People v. Cotto, 156 A.D.3d 1063, 1064, 66 N.Y.S.3d 742 [2017] ; People v. Lowe, 133 A.D.3d 1099, 1100, 21 N.Y.S.3d 399 [2015] ).
Here, during the abbreviated plea colloquy, County Court briefly advised defendant that, if he were to plead guilty, he would be giving up his "right to a trial, ... the right to testify at that trial, to call witnesses and to cross-examine the People's witnesses." Significantly, County Court did not advise defendant that he had a right to a jury trial or that he would be waiving the privilege against self-incrimination by entering a guilty plea (see People v. Holmes, 162 A.D.3d at 1118, 78 N.Y.S.3d 751 ; People v. Cotto, 156 A.D.3d at 1064, 66 N.Y.S.3d 742 ). Further, the court failed to obtain any assurance that defendant had discussed with counsel the trial-related rights that are automatically forfeited by pleading guilty or the constitutional implications of a guilty plea (see People v. Herbert, 147 A.D.3d at 1210, 47 N.Y.S.3d 500 ; People v. Lowe, 133 A.D.3d at 1101, 21 N.Y.S.3d 399 ; compare People v. Ocasio–Rosario, 120 A.D.3d 1463, 1464, 991 N.Y.S.2d 905 [2014], lvs denied 25 N.Y.3d 1168, 15 N.Y.S.3d 300, 36 N.E.3d 103 [2015], 26 N.Y.3d 1148, 32 N.Y.S.3d 62, 51 N.E.3d 573 [2016] ). In the absence of an affirmative showing on the record that defendant understood and voluntarily waived his constitutional rights when he pleaded guilty, the plea is invalid and must be vacated (see People v. Holmes, 162 A.D.3d at 1118, 78 N.Y.S.3d 751 ; People v. Herbert, 147 A.D.3d at 1211, 47 N.Y.S.3d 500 ; People v. Klinger, 129 A.D.3d 1115, 1117, 10 N.Y.S.3d 366 [2015] ).
Defendant's remaining contentions have been rendered academic by our determination.
Mulvey and Aarons, JJ., concur.
Egan Jr., J.P. (dissenting).
We respectfully dissent because we do not think that the unpreserved error cited by the majority, standing alone, necessitates this Court exercising its interest of justice jurisdiction to reverse the judgment of conviction as there is nothing compelling about this case that "cries out for fundamental justice beyond the confines of conventional considerations" ( People v. Williams, 145 A.D.3d 100, 107, 40 N.Y.S.3d 94 [2016] [internal quotation marks and citation omitted]; see People v. Matthew NN., 156 A.D.3d 1119, 1120, 68 N.Y.S.3d 189 [2017] ). Exercise of this Court's interest of justice jurisdiction should be rare and it should be used sparingly, upon a case-by-case review, as such jurisdiction was "not designed or intended to be used to resolve public policy concerns or for a system-wide fix" ( People v. Williams, 145 A.D.3d at 107, 40 N.Y.S.3d 94 ; see People v. Harmon, 181 A.D.2d 34, 36, 586 N.Y.S.2d 922 [1992] ), i.e., addressing repetitive issues concerning arguably deficient plea colloquies by certain trial courts. Although the Court of Appeals has made plain that it is a "vital responsibility" of the trial courts to ensure that defendants who plead guilty do so knowingly, voluntarily and intelligently, it is well settled that trial courts "need not engage in any particular litany" ( People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ). In our view, until the Legislature or the Court of Appeals elects to require that trial courts follow a particular catechism in taking a guilty plea, it is not appropriate for this Court to exercise its interest of justice jurisdiction to reverse a judgment of conviction each time it determines that a trial court has failed to completely advise a defendant of each and every constitutional right that he or she is foregoing when taking a guilty plea, particularly where, as here, the defendant voiced no objection to the content of the allocution either at the time it occurred or in any subsequent postplea motion to the trial court.
Here, defendant failed to make an appropriate postallocution motion on the ground that his plea was not knowingly, voluntarily or intelligently entered into, nor does the narrow exception to the preservation rule apply. On appeal, defendant does not claim that he is innocent of the charges to which he previously pleaded guilty, nor has he demonstrated any extraordinary circumstances that would justify taking corrective action in the interest of justice. At all relevant times, defendant was represented by counsel, was initially presented with a plea offer in September 2015 and, following a two-week adjournment, elected to reject same. In December 2015, while defendant's omnibus motion was pending, the People notified County Court that defendant had agreed to enter a plea of guilty in accord with the terms of the original plea offer. At a brief subsequent court appearance, the matter was further adjourned to January 2016 so that defendant could, among other things, make inquiry of the incoming District Attorney as to whether the consecutive sentences contemplated in the subject plea offer could run concurrently. The People were subsequently unwilling to make such a concession, and, in turn, defendant chose to plead guilty in accord with the terms previously offered. He then admitted that he had abducted the victim and that he had unlawfully possessed a quantity of heroin with the intent to sell it; he was subsequently sentenced, as a second felony offender, in accord with the negotiated disposition. In sum, we do not perceive any rare, unusual or extraordinary circumstances in the present matter that should compel this Court to take corrective action (see People v. Williams, 145 A.D.3d at 108, 40 N.Y.S.3d 94 ), and, therefore, we would decline to exercise our interest of justice jurisdiction (see CPL 470.15[6][a] ; People v. Walker, 135 A.D.3d 1244, 1245–1246, 23 N.Y.S.3d 485 [2016] ; see also People v. Cade, 165 A.D.3d 551, 551, 84 N.Y.S.3d 358 [2018] ; People v. Gillegbower, 143 A.D.3d 479, 479, 38 N.Y.S.3d 420 [2016], lv denied 28 N.Y.3d 1145, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ; People v. Simmons, 138 A.D.3d 520, 520, 28 N.Y.S.3d 315 [2016], lv denied 27 N.Y.3d 1139, 39 N.Y.S.3d 121, 61 N.E.3d 520 [2016] ; compare People v. Holmes, 162 A.D.3d 1117, 1118, 78 N.Y.S.3d 751 [2018] ).
Pritzker, JJ., concurs.
ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and matter remitted to the County Court of Broome County for further proceedings not inconsistent with this Court's decision.