168 A.D.3d 1221
N.Y. App. Div.2019Background
- Defendant Jeffrey S. Demkovich was indicted on kidnapping in the second degree, rape in the third degree, and criminal possession of a controlled substance in the third degree.
- He pleaded guilty to attempted kidnapping in the second degree and criminal possession in the third degree pursuant to a negotiated plea.
- County Court sentenced him, as a second felony offender, to an aggregate nine-year prison term plus five years postrelease supervision.
- On appeal, Demkovich argued his plea was not knowing, voluntary, and intelligent because the court failed to advise him of certain constitutional rights waived by a guilty plea.
- The Appellate Division found the plea colloquy omitted explicit advisals of the privilege against self-incrimination and the right to a jury trial and did not show that defendant and counsel had discussed forfeited trial-related rights.
- The court reversed the conviction in the interest of justice and remitted for further proceedings; one judge dissented, arguing the error was unpreserved and not sufficiently extraordinary to justify exercising interest-of-justice jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the guilty plea was knowing, voluntary, and intelligent | People: plea valid because defendant admitted culpability and there was a negotiated disposition | Demkovich: plea invalid because court failed to advise of specific constitutional rights (jury trial, privilege against self-incrimination) and did not confirm discussion with counsel | Reversed: plea vacated — record did not affirmatively show waiver of trial-related constitutional rights; appellate court exercised interest-of-justice jurisdiction to correct the unpreserved error |
| Whether failure to give specific advisals can be cured absent a postallocution motion | People: error was unpreserved; typically requires postallocution motion | Demkovich: appellate correction appropriate due to omission in colloquy | Court exercised discretionary CPL 470.15(3) authority to act in the interest of justice and reversed despite lack of preservation |
| Whether a rigid script is required for plea colloquies | People: trial courts need not follow a rigid script | Demkovich: colloquy must still affirmatively show waiver of core rights | Court reiterated no fixed litany required but emphasized the record must show waiver of privilege against self-incrimination, right to jury trial, and confrontation rights |
| Whether extraordinary circumstances existed to justify interest-of-justice reversal | People (dissent): no extraordinary circumstances; defendant made admissions, had counsel, and did not move postplea | Demkovich: appellate court found omission significant enough to warrant correction | Majority: exercised interest-of-justice discretion; Dissent: would have declined to intervene |
Key Cases Cited
- People v. Conceicao, 26 N.Y.3d 375 (court must ensure guilty pleas are knowing, voluntary, intelligent)
- People v. Tyrell, 22 N.Y.3d 359 (trial-related rights that are forfeited must be shown waived on the record)
- People v. Holmes, 162 A.D.3d 1117 (plea vacated where record didn’t show waiver of constitutional rights)
- People v. Cotto, 156 A.D.3d 1063 (colloquy must demonstrate waiver of core rights)
- People v. Herbert, 147 A.D.3d 1208 (court should confirm defendant discussed forfeited rights with counsel)
- People v. Lowe, 133 A.D.3d 1099 (record must reflect understanding of rights waived)
- People v. Klinger, 129 A.D.3d 1115 (failure to affirmatively show waiver renders plea invalid)
- People v. Williams, 145 A.D.3d 100 (interest-of-justice jurisdiction is narrow and should be used sparingly)