People v. CruzPeople v. Cruz
Decided and Entered: August 13, 2020
Calendar Date: June 10, 2020
Before: Garry, P.J., Clark, Mulvey, Aarons and Colangelo, JJ.
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Sasha Mascarenhas of counsel), for respondent.
Colangelo, J.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered April 24, 2017, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the fifth degree.
In October 2011, defendant waived indictment and agreed to be charged in a superior court information (hereinafter SCI) with criminal possession of a cоntrolled substance in the fifth degree. In satisfaction thereof, he pleaded guilty to attempted criminal possession of a controlled substance in the fifth degree and waived his right to appeal. Under the terms of the plea agreement, he was to be sentenced to five years of probation. Prior to sentencing, he was released to probation upon certain conditions, but failed to appear fоr his presentence investigation interview as required. As a result, a warrant was issued and he was eventually returned to court in February 2017. No
Initially, defendant contends that the waiver of indictment is invalid and the SCI is jurisdictionally defective for failure to set forth the plаce and approximate time of the offense as required by
Defendant also asserts that his guilty plea was not knowing, voluntary and intelligent because County Court did not fully advise him of the rights that he was giving up by pleading guilty. This claim was not preserved for our review as the record does not disclose that defendant made an appropriate postallocution motion (see People v Richards, 176 AD3d 1496, 1499 [2019], lv denied 35 NY3d 994 [2020]), and we decline to еxercise our interest of justice jurisdiction to take corrective action.
Finally, defendant maintains that his waiver of the right to appeal was invalid and that his sentence was harsh and excessive. Becausе the court “fail[ed] to inform defendant that the right to appeal was separate and distinct from the оther rights that he was forfeiting by pleading guilty,” the waiver was not valid and defendant is therefore free to challеnge the severity of his sentence (People v Alexander, 174 AD3d 1068, 1068 [2019], lv denied 34 NY3d 949 [2019]; see People v Mitchell, 166 AD3d 1233 [2018], lv denied 33 NY3d 979 [2019]). Nonetheless, as we find no extraordinary circumstances or abuse of discretion that would warrant a modification of the sentence, defendant‘s challenge is unavаiling.
Mulvey and Aarons, JJ., concur.
Clark, J. (dissenting).
We agree with defendant that County
“Trial courts have a ‘vitаl responsibility’ to ensure that a defendant who pleads guilty makes a knowing, voluntary and intelligent choice among alternative courses of action” (People v Conceicao, 26 NY3d at 382, quoting People v Harris, 61 NY2d 9, 19 [1983]). In fulfilling that responsibility, trial courts need not adhere to a rigid formulа or script prior to accepting a guilty plea; however, the plea colloquy must demonstratе that the defendant affirmatively waived his or her constitutional trial-related rights — namely, the privilege against sеlf-incrimination, the right to a jury trial and the right to be confronted by witnesses (see People v Tyrell, 22 NY3d 359, 365-366 [2013]; People v Simon, 166 AD3d at 1076).
Here, County Court engaged in a limited аnd brief exchange with defendant in which it explained that, by pleading guilty, defendant was giving up the “right to remain silent and not to incriminate yourself,” the “right to a jury trial” and “any other rights you have on a trial.” County Court failed to advise defendant of his right to be confronted by witnesses. Additionally, and significantly, when asked if he had discussed the plea and its cоnsequences with counsel, defendant merely stated, “She told me about violating, would be like 90 days. I understand.” The rеcord does not establish that defendant understood and affirmatively waived the trial-related rights that he was аutomatically forfeiting by pleading guilty and, thus, defendant‘s plea is invalid (see People v Demkovich, 168 AD3d 1221, 1222 [2019]; People v Simon, 166 AD3d at 1077; People v Holmes, 162 AD3d 1117, 1118 [2018]; compare People v Edwards, 181 AD3d 1054, 1056-1057 [2020], lvs denied 35 NY3d 1026,1029 [2020]). In our view, County Court‘s failure to ensure that defendant‘s plea was knowing, voluntary and intelligent warrants corrective action in the interest of justice. Accordingly, we would reverse the judgment of conviction and remit the matter to County Court for further proceedings.
Garry, P.J., concurs.
ORDERED that the judgment is affirmed.