The People, Respondent,v.Joseph Conceicao, Appellant.BriefN.Y.October 20, 2015Argued by ORRIE A. LEVY COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOSEPH CONCEICAO, Defendant-Appellant, RESPONDENT’S B R I E F ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent Bronx, New York 10451 718-838-7121 Levyo@bronxda.nyc.gov JOSEPH N. FERDENZI ORRIE A. LEVY Assistant District Attorneys of counsel __________________________________________ PRINTED ON RECYCLED PAPER TABLE OF CONTENTS TABLE OF AUTHORITIES…………………………………………………..iii PRELIMINARY STATEMENT…..………………..………………………….1 QUESTIONS PRESENTED……………...………………….........................2 FACTS…………………………………………………………..………………...3 ARGUMENT…………………………………………………………………......5 POINT ONE TYRELL’S REQUIREMENT THAT COURTS ADVISE DEFENDANTS OF CERTAIN BOYKIN RIGHTS ON THE RECORD IN ORDER FOR A PLEA TO BE KNOWING, INTELLIGENT AND VOLUNTARY, AND ITS DETERMINATION THAT THE FAILURE OF A COURT TO DO SO MAY BE CHALLENGED ON DIRECT APPEAL, EVEN IN THE ABSENCE OF PRESERVATION, CONSTITUTE NEW RULES THAT SHOULD BE APPLIED PROSECTIVELY. …………………………………………………………………..……….…5 POINT TWO DEFENDANT’S CHALLENGE TO THE SUFFICIENCY OF HIS ALLOCUTION SHOULD BE REJECTED BECAUSE IT WAS NOT PRESERVED BY OBJECTION AND IS OTHERWISE WITHOUT MERIT. …………………………………………………………………...……......37 CONCLUSION…………………………………………………………...…….55 PRINTING SPECIFICATIONS STATEMENT…………………………........................................................56 i TABLE OF AUTHORITIES FEDERAL CASES Boykin v. Alabama, 395 U.S. 238 (1969) .......................................... 16, 25 Canley v. Cochran, 369 U.S. 506 (1962) ................................................. 17 Fuller v. Schultz, 572 F.Supp.2d 425 (S.D.N.Y. 2008) ............................. 7 Lafler v. Cooper, __ U.S. __, 132 S. Ct 1376 (2012) ................................ 31 Padilla v. Kentucky, 559 U.S. 356 (2010) ......................................... 14, 50 Robles v. Fischer, No. 05 Civ. 3232 (JSR)(FM) (S.D.N.Y. Feb 22, 2008) . 7 STATE CASES People v. Adams, 46 N.Y.2d 1047 (1979) .......................................... 37, 38 People v. Ali, 96 N.Y.2d 840 (2001) ......................................................... 39 People v. Allen, 39 N.Y.2d 916 (1976) ..................................................... 50 People v. Baret, 23 N.Y.3d 777 (2014) ............................................... 14, 35 People v. Bell, 47 N.Y.2d 839 (1979) ....................................................... 37 People v. Bialostok, 80 N.Y.2d 738 (1993)................................................. 6 People v. Butler, 200 A.D.2d 515 (1st Dept. 1994) ................................... 39 People v. Diaz, 112 A.D.3d 423 (1st Dept. 2013) ..................................... 10 People v. Diaz, 2 A.D.3d 300 (1st Dept. 2003) ........................................... 7 People v. Easter, 122 A.D.3d 1073 (3d Dept. 2014)................................. 44 People v. Fiumefreddo, 82 N.Y.2d 536 (1993) ......................................... 18 People v. Gibson, 54 A.D.3d 350 (2d Dept. 2008) .................................... 15 ii People v. Glusko, 114 A.D.3d 701 (2d Dept.), lv. denied, 23 N.Y.3d 1062 (2014) ..................................................................................................... 44 People v. Grant, 121 A.D.3d 1016 (3d Dept. 2014) ................................. 44 People v. Grubstein, __N.Y.2d__, 2014 N.Y. Slip Op. 07924 (November 14, 2014) ................................................................................................ 34 People v. Harris, 61 N.Y.2d 9 (1983) ................................................. 17, 21 People v. Irvin, 106 A.D.3d 1105, lv. denied, 22 N.Y.3d 1088 (2013) ..... 44 People v. Ivery, 18 A.D.3d 884 (2d Dept. 2005) ......................................... 7 People v. Jackson, 114 A.D.3d 807 (2d Dept. 2014) .......................... 40, 44 People v. Jennings, 8 A.D.1067 (4th Dept. 2004) ..................................... 40 People v. Kitt, 102 A.D.3d 984 (2d Dept.), lv. denied 21 N.Y.3d 1005 (2013) ....................................................................................................... 9 People v. Lofton, 115 A.D.3d 989 (2d Dept. 2014), lv. denied, 23 N.Y.3d 1039 (2014) ............................................................................................ 44 People v. Lopez, 35 A.D.3d 763 (2d Dept. 2006) ................................ 14, 47 People v. Lopez, 71 N.Y.2d 662 (1998) ................................................ 7, 38 People v. Louree, 8 N.Y.3d 541 (2007) ................................................. 8, 51 People v. Martello, 93 N.Y2.d 645 (1999) .................................................. 6 People v. Mitchell, 80 N.Y.2d 519 (1992) ............................................ 6, 23 People v. Nixon, 21 N.Y.2d 338 (1967) .............................................. 25, 52 People v. Nugent, 109 A.D.3d 625 (2d Dept. 2013) ........................... 40, 44 iii People v. Nugent, 109 A.D.3d 625 (2d Dept. 2013) lv. denied, 22 N.Y.3d 998 (2013) .............................................................................................. 40 People v. Nyarko, 93 A.D.3d 555 (1st Dept. 2012), lv. denied, 19 N.Y.3d 965 (2012) .............................................................................................. 10 People v. Orama, 78 N.Y.2d 270 (1991) .................................................. 43 People v. Pellegrino, 60 N.Y.2d 636 (1983) ............................................. 38 People v. Perez, 226 A.D.3d 511 (1st Dept. 2014) .................................... 19 People v. Peque, 22 N.Y.3d 168 (2013) .............................................. 33, 51 People v. Raleigh, 121 A.D.3d 1412 (3d Dept. 2014) .............................. 40 People v. Rickenbacker, 114 A.d.2d 982 (2d Dept. 1985) ....................... 21 People v. Rivera, 51 A.D.3d 1267 (3d Dept. 2008) .................................... 9 People v. Robles, 22 Misc.3d 140 (9th and 10th Jud. Dists. 2009) ............ 15 People v. Sanchez, 112 A.D.3d 646 (2d Dept. 2014) ................................ 39 People v. Seaberg, 74 N.Y.2d 1 (1989) ..................................................... 21 People v. Serrano, 15 N.Y.2d 304 (1965) ................................................. 38 People v. Spivey, 9 A.D.3d 886 (4th Dept. 2004) ....................................... 7 People v. Syville, 15 N.Y.3d 391 (2010) ................................................... 34 People v. Tavarez, 110. A.D.3d 473 (1st Dept. 2013) ............................... 33 People v. Thomas, 17 A.D.3d 1123 (4th Dept. 2005) ................................ 40 People v. Tyrell, 2 N.Y.3d 359 (2013) ........................................................ 4 People v. Tyrell, 22 N.Y.3d 359 (2013) ................................................ 5, 47 People v. Vickers, 84 A.D.3d 627 (1st Dept. 2011) ................................... 21 iv People v. Warren, 47 N.Y.2d 251 (1979) .............................................. 7, 37 People v. Whitaker, 27 A.D.3d 499 (2d Dept. 2006) ................................ 40 People v. Williams, 118 A.D.3d 1429 (4th Dept. 2014) ............................ 44 STATUTES CPL § 220.60........................................................................................ 7, 39 CPL § 440.10...................................................................................... 34, 42 OTHER AUTHORITIES Criminal Court of the City of New York: Annual Report 2012, available at http://www.courts.state.ny.us/COURTS/nyc/criminal/AnnualReport 2012.pdf ................................................................................................... 31 DCJS, 2008–2012 Dispositions of Adult Arrests, Bronx County, availale at http://www.criminaljustice.ny.gov/crimnet/ojsa/dispos/bronx.pdf ...... ……………….. .................................................................................... 19, 27 Jenny Roberts, The Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions: “Involuntary Commitment of Sexually Violent Predators” 93 Minn. L. Rev. 670 , 684 (2008) .......... 52 Markus Dirk Dubber, American Plea Bargains, German Lay Judges, and the Crisis of Criminal Procedure, 49 Stan. L. Rev. 547, 552 (1997) ............................................................................................................... 52 Michael M. O'Hear, Plea Bargaining and Procedural Justice, 42 Ga. L. Rev. 407 (2008) ...................................................................................... 52 v Performance Guidelines for Criminal Defense Representation, Guideline 6.4(a)(1), http://www.nlada.org/Defender/Defender_Standards/ Performance_Guidelines ......................................................................... 49 Richard Klein, Due Process Denied: Judicial Coercion in the Plea Bargaining Process, 32 Hofstra L. Rev. 1349 (2004) ........................... 52 Transcript of Oral Argument at 30, People v. Tyrell, 22 N.Y.3d 359 [2013] [Nos. 230, 231]) .......................................................................... 20 vi COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- APL-2014-00122 JOSEPH CONCEICAO Defendant-Appellant. --------------------------------------------------------------------------X RESPONDENT'S BRIEF STATEMENT By permission of the Honorable Jonathan Lippman, defendant appeals from an order of the Appellate Term, First Department, rendered October 26, 2011, which affirmed defendant’s judgment of conviction in Supreme Court, Bronx County, rendered December 31, 2009, convicting him, after his plea of guilty, of Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03), and sentencing him to two days of social service (Collins, J., at plea and sentence). Defendant is currently at liberty. 1 QUESTION PRESENTED 1. Whether Tyrell announced new rules of state criminal procedure in creating a preservation exception for Boykin-based claims and requiring a more robust allocution at misdemeanor pleas? 2. Whether defendant validly waived his constitutional rights prior to pleading guilty? The court below had no opportunity to address this question because defendant did not object or alert the court to his instant claim. 2 THE FACTS The Accusatory Instrument On December 31, 2009, under docket number 2009BX082306, defendant was charged with Criminal Possession of a Controlled Substance in the Seventh Degree. The Plea and Sentencing On December 31, 2009, defendant was arraigned in the Criminal Court of the State of New York, Bronx County. The prosecutor noted that defendant would plead guilty to the docket in exchange for a sentence of a conditional discharge, the condition being that defendant complete two days of social service. Thereafter, the following colloquy took place: DEFENSE COUNSEL: Pleading guilty to the docket, conditional discharge, two days of social service. THE COURT: How do you plead to the charge of criminal possession of a controlled substance; guilty or not guilty. DEFENDANT: Guilty. THE COURT: Judgment of the court, the Defendant is sentenced to a conditional discharge; two days social service; judgment entered as to the court fees. 3 (Plea and sentence minutes, p. 2). Defendant was represented at his plea by Steven Talber, Esq., of The Legal Aid Society. Post-conviction Litigation In February of 2011, defendant, represented by Paul Weiner, Esq., of The Legal Aid Society, filed a brief in the Supreme Court of the State of New York, Appellate Term, First Department, in which he alleged that the record failed to establish that his plea was knowing, intelligent and voluntary in that the record was silent with respect to whether defendant was informed by the court or by counsel of the rights he was forfeiting by pleading guilty. On October 26, 2011, the Appellate Term affirmed the judgment on the ground that defendant’s claim was unpreserved for appellate review because he failed to move to withdraw his plea. See People v. Conceicao, 33 Misc.3d 132(A) (App. Term. 1st Dept. 2011). In the alternative, the court denied defendant’s claim on the merits on the ground that it was demonstrable that “the plea was ‘voluntary knowing and intelligent.’” Id. On March 2, 2012, Judge Ciparick denied defendant’s application for leave to appeal to the Court of Appeals. See People v. Conceicao, 18 N.Y.3d 956 (2012). Subsequently, this Court granted leave in the case of People v. Tyrell, 19 N.Y.3d 1105 (2012), and defendant moved for reconsideration of his leave application. On November 27, 2012, Judge Ciparick granted defendant’s motion for reconsideration and, upon reconsideration, denied defendant’s renewed application with leave to renew within thirty days after the court decided Tyrell. On December 12, 2013, this Court decided People v. Tyrell, 2 N.Y.3d 359 (2013). On 4 December 20, 2013, defendant renewed his application for leave and, on May 21, 2014, Chief Judge Lippmann granted defendant’s application. ARGUMENT POINT ONE TYRELL’S REQUIREMENT THAT COURTS ADVISE DEFENDANTS OF CERTAIN BOYKIN RIGHTS ON THE RECORD IN ORDER FOR A PLEA TO BE KNOWING, INTELLIGENT AND VOLUNTARY, AND ITS DETERMINATION THAT THE FAILURE OF A COURT TO DO SO MAY BE CHALLENGED ON DIRECT APPEAL, EVEN IN THE ABSENCE OF PRESERVATION, CONSTITUTE NEW RULES THAT SHOULD BE APPLIED PROSECTIVELY. Defendant claims that his case is indistinguishable from the recent case of People v. Tyrell, 22 N.Y.3d 359 (2013), and, therefore, his conviction should be vacated and the accusatory instrument dismissed. Tyrell, however, was premised on two new rules of state criminal procedure that should be applied prospectively, and not to defendant’s judgment of conviction, which was rendered four years prior to Tyrell. Prospective application of a new rule of state decisional law is appropriate when a decision “represent[s] a dramatic shift away from customary and established procedure,” and, therefore, threatens to impact a substantial number of cases pending on direct appeal at the time the new rule is promulgated. See People v. Mitchell, 80 N.Y.2d 519 5 528–529 (1992); see also People v. Favor, 82 N.Y.2d 254, 262 (1993); People v. Martello, 93 N.Y2.d 645 (1999) (limiting the rule announced in People v. Bialostok, 80 N.Y.2d 738 [1993] to prospective application). Thus, the threshold questions in determining whether a new rule should be applied prospectively are whether the rule is one of state law, and whether the rule is new. Tyrell announced two new rules of state law. First, it altered decades of preservation rules for challenging plea allocutions on direct appeal. Second, it required a more substantial allocution than that required by federal law, even in cases where a defendant is not facing imprisonment or other significant punishment. If this threshold is met, whether a rule should be applied prospectively or to cases pending on direct appeal turns on three factors: the purpose to be served by the new rule; the extent of reliance on the supplanted standard; and the potential effect on the administration of justice of giving retroactive effect to the new rule. See People v. Pepper, 53 N.Y.2d 213, 220 (1981); Mitchell, 80 N.Y.2d at 525. The new rules announced in Tyrell meet all of the requirements for prospective application. A. Tyrell Announced a New State Rule of Preservation In 1979, this Court held that a defendant’s challenge to the sufficiency of his plea allocution was unpreserved because the defendant failed to raise the issue by “motion to vacate or otherwise in 6 the court of first instance.” People v. Warren, 47 N.Y.2d 251 (1979). Since that time, New York’s appellate courts have faithfully and routinely applied this preservation rule. See, e.g., People v. Diaz, 2 A.D.3d 300 (1st Dept. 2003); People v. Ivery, 18 A.D.3d 884 (2d Dept. 2005); People v. Graham, 35 A.D.3d 1039 (3d Dept. 2006); People v. Spivey, 9 A.D.3d 886 (4th Dept. 2004).1 Indeed, in the context of federal habeas corpus proceedings, Federal Judges have denied Habeas relief on the ground that the rule that “a defendant’s challenge to his guilty plea is unpreserved unless he first moves to withdraw his plea or vacate the judgment” is a rule which is “firmly established and regularly followed” in New York. Fuller v. Schultz, 572 F.Supp.2d 425 (S.D.N.Y. 2008); Robles v. Fischer, No. 05 Civ. 3232 (JSR)(FM) (S.D.N.Y. Feb 22, 2008). Prior to Tyrell, this Court had carved out only two narrow exceptions to this longstanding rule of preservation. In People v. Lopez, 71 N.Y.2d 662 (1998), this Court observed that “in order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea under CPL 220.60(3) or a motion to vacate the judgment of conviction under CPL 440.10.” This Court then created a “narrow exception” to this rule for the “rare case” where a 1 It is difficult to overstate the extent to which New York’s appellate courts have relied on this preservation rule over the years. A cursory search on Westlaw reveals dozens of such cases. 7 “defendant's factual recitation negates an essential element of the crime pleaded to.” Id. In such a case, a defendant may challenge the sufficiency of a plea allocution on direct appeal. Notwithstanding this exception, in the years after Lopez, New York’s appellate courts continued to strictly apply the preservation rule reaffirmed in Lopez. In fact, many cases, including the cases cited above, actually relied on Lopez as supportive authority in rejecting unpreserved challenges to the sufficiency of plea allocutions in cases where a defendant was not claiming that his factual recitation negated an essential element of the crime. Thereafter, in People v. Louree, 8 N.Y.3d 541 (2007), this Court addressed a situation where a plea court did not inform a defendant of the post-release supervision component of his sentence until the sentencing date, which was approximately three months after his conviction. This court observed that post-release supervision is a direct consequence of a conviction and that the failure to advise a defendant of this direct consequence deprived him of the ability to make a knowing, voluntary and intelligent choice among alternative courses of action. With respect to preservation, this Court held that, similar to Lopez, a post-allocution motion is not required to preserve this claim. This Court observed that, since the defendant was not informed of the post-release supervision aspect of his sentence, and, therefore, was unaware of this 8 ground, there was no actual or practical ability for the defendant to move to withdraw his plea. Much as in the aftermath of Lopez, New York’s appellate courts viewed the exception in Louree as both narrow and fact-dependent. In People v. Rivera, 51 A.D.3d 1267 (3d Dept. 2008), the court observed that in Louree, the court “deemed Catu errors to be similar to the rare cases in which ‘a defendant’s factual recitation negates an essential element of the crime pleaded to’ – evincing that the plea is not intelligently entered.” What this case demonstrates is that New York’s intermediate appellate courts did not believe that the preservation exception announced in Louree applied beyond the narrow situation described there – namely, where a defendant was not informed of a direct penal consequence of his conviction. Most notably, in Tyrell itself, this Court observed that Louree created a “limited exception.” Understandably, therefore, courts after Louree continued to require preservation when a challenge to a plea allocution did not fall into the Lopez or Catu factual scenarios. For instance, in People v. Kitt, 102 A.D.3d 984 (2d Dept.), lv. denied 21 N.Y.3d 1005 (2013), decided six years after Louree and less than one year before Tyrell, the Second Department held that a defendant’s claim that his plea allocution was inadequate because the court failed to advise him of various Boykin rights was unpreserved. The court further observed that “nothing on 9 the record either negated an essential element of the crime to which he pleaded guilty or cast significant doubt on his guilt.” Id. Even the dissent in that case agreed that the defendant’s claim was unpreserved and reached the merits of defendant’s claim by relying on the court’s interest of justice jurisdiction, not on Louree. Kitt was not alone in reaching this conclusion. For instance, both of the underlying decisions in Tyrell as well as the underlying decision in the instant case held, without reservation, that a Boykin-based challenge to a guilty plea had to be preserved. See also People v. Nyarko, 93 A.D.3d 555 (1st Dept. 2012), lv. denied, 19 N.Y.3d 965 (2012) (defendant’s challenge to his plea allocution unpreserved where he did not move to withdraw his plea); People v. Diaz, 112 A.D.3d 423 (1st Dept. 2013) (same). In Tyrell, for the first time, this Court addressed whether a defendant was required to preserve a Boykin challenge in the context of a misdemeanor plea allocution where the conviction and sentence occur at the same time. This Court observed that, taking the “rare case” discussed in Lopez together with the “limited exception” announced in Louree, “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record, preservation is not required.” After extracting this general principle, this Court found that, because the plea and sentence occurred in the same proceeding, the defendant did not have a practical ability to move 10 to withdraw his plea. The Court concluded that whether falling into the Lopez/Louree exception, or treated as a mode of proceedings error, defendant’s Boykin claim did not require preservation. This holding regarding preservation constituted a new rule. Indeed, the analysis itself suggested its novelty. No court had previously found that the failure to inform a defendant of his Boykin rights during an allocution was a mode of proceedings error that did not require preservation. Moreover, in Louree, where a defendant was not informed of a direct penal consequence of his conviction, a seemingly far more egregious error than a Boykin violation, this Court made no mention of a mode of proceedings error as a basis for not requiring preservation. Accordingly, to the extent the preservation exception created in Tyrell depended on a mode of proceedings error, this constituted a new rule. Furthermore, to the extent the court was relying on a defendant’s practical inability to withdraw a plea as the basis for not requiring preservation, prior to Tyrell, this exception was closely related to the substance of a defendant’s claim and not simply based on temporal considerations. Namely, in Lopez, the exception was triggered, in part, because the allocution negated an essential element of the crime. Similarly, in Louree, the court’s preservation exception did not simply turn on the practical inability to bring a plea-withdrawal motion, but on 11 the substance of the defendant’s claim that he was unaware of his sentence, a critical aspect of his conviction. Indeed, due to the language in Lopez and Louree, and as evidenced by the Rivera decision, these exceptions were viewed by New York’s appellate courts as intrinsically linked to the factual scenarios in those cases and as limited to those factual scenarios. The innovation of Tyrell is that the exception to preservation it created was based exclusively on the fact that the plea and sentence occurred at the same time, a circumstance that was not present in either Lopez or Louree. Additionally, Tyrell announced this rule in the context of a claim that had nothing to do with the elements of the crime or the penal consequences that flowed therefrom, which were critical motivating factors in Lopez and Louree and are of a different qualitative nature than a Boykin claim. Moreover, the Tyrell preservation rule was not mandated by Lopez or Louree. Indeed, notwithstanding the fact that prior to Tyrell, plea allocutions in misdemeanor cases routinely omitted the recitation of Boykin rights (as evidenced by the numerous reversals on this ground since Tyrell, and the number of pre-Tyrell cases which held such claims unpreserved), until Tyrell, no case from this Court or the Appellate Division applied the preservation exception announced in Louree to 12 Boykin claims or, for that matter, to any other factual circumstances than the ones discussed in Lopez and Louree. Most importantly, Lopez and Louree, by their own terms, created narrow exceptions to a general and longstanding preservation rule in specific circumstances. The rule announced in Tyrell, by contrast, extracted a general, temporal-based exception to historical preservation requirements which, seemingly, applies to every case where a conviction and plea are conducted in the same proceeding, irrespective of the nature of the offense or sentence. This determination was particularly novel in that in a vast number of misdemeanor cases, the conviction and sentence are imposed in the same proceeding. Thus, in a large number of cases, Tyrell essentially created a preservation exception to a defendant’s attack on any aspect of the plea allocution which historically required preservation by a plea-withdrawal motion. Put differently, the preservation exception announced in Tyrell swallowed the rule and effectively spelled the end to the preservation doctrine with respect to attacks on the sufficiency of plea allocutions in cases where the plea and sentence occur at the same time. This was a remarkable, unexpected, and broad departure from the pre-Tyrell landscape and from the language of rarity and narrowness employed in Lopez and Louree. 13 Moreover, and contrary to defendant’s position, that this Court in Tyrell extracted a general preservation doctrine from the narrow exceptions articulated in Lopez and Louree does not mean that the preservation rule in Tyrell was not new. If defendant’s argument was correct, then Padilla v. Kentucky, 599 U.S. 356 (2010), would never have been considered a new rule (see People v. Baret, 23 N.Y.3d 777 [2014]) because, employing defendant’s logic, it simply applied Strickland to a new factual scenario. When this Court in Tyrell extracted a preservation rule of general applicability from the narrow holdings of Lopez and Louree, which was divorced from and not mandated by the facts and holdings of those cases, and then categorically applied that general rule to a wholly different and extremely common circumstance to which it had never previously been applied, this Court created a new rule. This is particularly true since New York’s intermediary appellate courts did not believe that the narrow exceptions established in Lopez and Louree applied to this circumstance. See e.g., People v. Lopez, 35 A.D.3d 763 (2d Dept. 2006) (finding defendant’s challenge to the sufficiency of his allocution on the ground that he was not informed of his Boykin rights unpreserved).2 2 The nature of the defendant’s claim in Lopez, while not delineated by the court, is found in his brief, which is available on Westlaw, 2006 WL 4455085. 14 Furthermore, defendant’s reliance on a smattering of cases to suggest that, prior to Tyrell, New York’s intermediary appellate courts did not require a defendant to preserve a Boykin claim is misplaced (defendant’s brief, p. 15). The only Appellate Division case defendant cites is People v. Gibson, 54 A.D.3d 350 (2d Dept. 2008), in which the People consented to vacatur without any mention of preservation and in which the court’s decision never mentioned preservation.3 This case in no way supports defendant’s position. In fact, that the only Appellate Division case defendant can cite in support of his position is Gibson is powerful evidence that the rule established in Tyrell was novel. Similarly, defendant’s reliance on three Appellate Term cases is also misplaced. Far from serving as support for defendant’s position, the fact that there are only three such cases in all the years since Boykin, whereas there have been approximately thirty Tyrell-based reversals in the year since Tyrell alone, is a testament to the outlier status of these three cases. Moreover, at least one of these cases does not appear to turn simply on the ground that a defendant was not advised of his Boykin rights, but on a more fundamental flaw in the allocution – a court’s failure to inquire whether the defendant wanted to plead guilty. See People v. Robles, 22 Misc.3d 140 (9th and 10th Jud. Dists. 2009). Thus, in the six years between Louree and Tyrell, defendant can point 3 The People’s consent to vacatur of the defendant’s conviction is found in the Respondent’s brief, which is available on Westlaw, 2007 WL 5613857. 15 to, at most, two Appellate Term cases that presaged Tyrell’s use of Louree. That numerous Appellate Term and Appellate Division cases, including the underlying cases in Tyrell and the instant case, held otherwise demonstrates the limited utility of defendant’s cases. Accordingly, Tyrell announced a new rule of preservation. Additionally, this preservation rule is one of state law and, thus, governed by the Pepper test.4 B. Tyrell Announced a New State Rule of Criminal Court Procedure in Misdemeanor Plea Allocutions. In Boykin v. Alabama, the Supreme Court held, “What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.” Boykin v. Alabama, 395 U.S. 238, 243- 244 (1969) (emphasis added). Thus, a defendant facing serious punishment must understand, prior to the court’s acceptance of the plea, that “[a] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” Id. at 242. Since Boykin, no Supreme Court case has every applied this standard to a 4 Defendant does not argue, nor could he, that the state rules of preservation announced in Louree and Tyrell are based on federal law. As this Court is aware, rules of preservation in New York are governed by New York’s Criminal Procedure Law. See CPL Article 450. 16 circumstance where a defendant pled guilty to a misdemeanor with no incarceratory component. Similarly, in People v. Harris, 61 N.Y.2d 9, 16-17 (1983) in the context of felony convictions, this Court observed that there is no requirement for a “uniform mandatory catechism of pleading defendants.” This Court further found that, “[t]hough a rigorous and detailed colloquy may be appropriate in certain instances, under most ordinary circumstances such questioning by the Trial Judge would be an unnecessary formalism. The seriousness of the crime, the competency, experience and actual participation by counsel, the rationality of the ‘plea bargain’, and the pace of the proceedings in the particular criminal court are among the many factors which the Trial Judge must consider in exercising discretion.” Id. The Court continued with the observation that “there is no requirement that the Judge conduct a pro forma inquisition in each case on the off-chance that a defendant who is adequately represented by counsel may nevertheless not know what he is doing.” Id. The Court concluded that “matters of reality, and not mere ritual, should be controlling.” Id. Notwithstanding these principles, in Harris, this Court cited Canley v. Cochran, 369 U.S. 506 (1962), for the proposition that “[p]resuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, 17 that an accused intelligently and understandingly rejected [his constitutional rights]. Anything less is not waiver.” Id. This rule was reiterated in People v. Fiumefreddo, 82 N.Y.2d 536 (1993), in the context of a plea to second degree murder and a sentence of 18 years to life. Tyrell departed from this historical body of caselaw in numerous ways. Prior to Tyrell, neither the Supreme Court, nor this Court had ever applied Boykin or Harris to misdemeanor cases with no incarceratory component. Additionally, far from being a natural application of Boykin and Harris to a new circumstance, there were strong reasons to conclude, prior to Tyrell, that misdemeanor convictions with no incarceratory component did not fall into the category of cases targeted by Boykin. Defendants in New York City’s criminal courts simply are not in the same grave situation as the defendants in Boykin and Harris; many dispose of their cases by pleading guilty to non-criminal offenses, which do not result in a criminal record (see CPL 160.55 [1]), and incarceratory sentences are relatively uncommon.5 Moreover, unlike the open plea at issue in 5 According to statistics compiled by the New York State Division of Criminal Justice Services, only 6.7 percent of adults arrested in Bronx County in 2012, where the top arrest charge was a misdemeanor, ended up being sentenced to jail or imprisonment. See DCJS, 2008–2012 Dispositions of Adult Arrests, Bronx County, available at http://www.criminaljustice.ny.gov/crimnet/ojsa/dispos/bronx.pdf (accessed December 30, 2014). 18 Boykin, and the plea in Louree where defendant was not advised of a component of his sentence, defendants typically know, before entering a guilty plea to a misdemeanor, what their sentence will be (indeed, they are typically sentenced immediately after pleading guilty). Thus, there would have been little reason to believe that the rules announced in Boykin and Harris applied in low level cases with no risk of incarceration. It is unsurprising, therefore, that notwithstanding Boykin and Harris, New York’s criminal courts routinely omitted the recitation of Boykin rights. Indeed, anyone who has ever appeared in an arraignment part in a New York City criminal court could attest to the truth of this proposition. If common knowledge is insufficient to carry this point, its truth is also evidenced by the approximately thirty reversals that quickly followed Tyrell, coupled with the fact that, other than two appellate term case cited by defendant, there is no evidence that, prior to Tyrell, New York’s intermediary Appellate Courts believed such allocutions were required in misdemeanor pleas with no incarcertory component. Indeed, even after Tyrell, New York’s intermediary appellate courts have continued to hold that “there are, historically, certain minor transgressions which admit of summary disposition.” People v. Perez, 226 A.D.3d 511 (1st Dept. 2014). Thus, the 19 application of Boykin to misdemeanor cases with no incarceratory component constitutes a new rule.6 Tyrell was also new because it narrowed the body of material on which courts could rely in determining whether a defendant had waived his Boykin rights. As stated, in Harris, this Court held that in order for a plea to be valid, “[t]he record must show, or there must be an allegation and evidence which show, that an accused intelligently and understandingly rejected [his constitutional rights]. Anything less is not waiver.” The Court further noted that, to avoid “unnecessary formalism,” the nature of the allocution was in the discretion of the 6 Defendant places great weight on the fact that there have been “only” 29 Tyrell- based reversals in the past year and argues that the fact that “so few convictions have been reversed for the failure to give Boykin rights. . . strongly suggests” that New York’s criminal courts were advising defendants of Boykin rights. While the numerous flaws in this argument will be explored in detail in the People’s Pepper analysis (see pp. 28-31), for the purposes of the instant argument, it is important to note that even if one assumes that these 29 cases represent the only defendants who were not advised of their Boykin rights at or about the time Tyrell was decided (an erroneous assumption, as will be discussed below), and assuming that this number remained constant between Harris and Tyrell, nearly 900 defendants were not advised of their Boykin rights over the past thirty years. Over that entire period, defendant can only cite a single appellate term case which reversed a defendant’s conviction for the sole reason that a defendant was not advised of his Boykin rights. Moreover, defendant’s artfully worded assertion that “it is not clear that, prior to Tyrell, most courts failed to inform defendants who pled guilty to misdemeanors about their Boykin rights,” is a far cry from an affirmative argument that such rights were explained to defendants in most cases. Further, it is incongruous that appellate counsel, an attorney form the Legal Aid Society, makes this argument when Mr. Ferguson, the appellate attorney in Tyrell, and also an attorney from the Legal Aid Society, stated at oral argument in Tyrell that “sadly” the failure to advise of Boykin rights in misdemeanor cases is “a recurrent problem” and that while it is not “the norm” “it does happen on a fairly regular basis” (see Transcript of Oral Argument at 30, People v. Tyrell, 22 N.Y.3d 359 [2013] [Nos. 230, 231]). 20 judge, and whether it was valid turned on various factors including “[t]he seriousness of the crime, the competency, experience and actual participation by counsel, the rationality of the ‘plea bargain’, and the pace of the proceedings.” Id. After Harris, courts viewed these technically non-record factors as part and parcel of a showing that a defendant’s plea was knowing, intelligent and voluntary. For instance, in People v. Vickers, 84 A.D.3d 627 (1st Dept. 2011), the First Department, in the context of a Boykin claim, noted that no waiver “may be presumed from a silent record” and that “[a]mong the factors to be considered in determining whether a defendant understands the nature of his or her proffered guilty plea are the “age, experience and background of the accused.” The First Department cited to this Court’s decision in People v. Seaberg, 74 N.Y.2d 1, 10 (1989), for that proposition. Similarly, in People v. Rickenbacker, 114 A.d.2d 982 (2d Dept. 1985), the Second Department, citing Harris, rejected a Boykin claim on the ground that the “[d]efendant was represented by counsel throughout the previous proceeding, had experience with the criminal justice system dating back several years (including a previous plea bargain), and clearly understood the consequences of entering his guilty plea.” Tyrell, by contrast turned solely on the fact that there was no discussion on the record of the pertinent constitutional rights or record 21 evidence that the defendant spoke with his attorney regarding those rights. Thus, as envisioned by defendant, under Tyrell’s holding, if there is no record evidence that a defendant was advised of his Boykin rights, the plea would be deemed invalid, even if the defendant was informed of these rights at ten previous pleas, was himself a criminal defense attorney, was represented by the best defense attorney in New York, and had written numerous articles about Boykin rights. While this example may seem farfetched, it crystalizes a pivotal aspect of defendant’s Tyrell-based argument. Namely, that a defendant’s actual knowledge of his rights and his likelihood of exercising those rights is irrelevant to an evaluation of whether he validly waived those rights. This view of Boykin constituted a new rule. Given the pervasiveness with which courts did not advise defendants of Boykin rights in low-level cases, the numerous intermediary appellate courts upholding the practice, the decades of silence from this Court regarding whether the standard in Harris applied to misdemeanor plea allocutions with no incarceratory component (notwithstanding numerous opportunities to weigh in on this issue over the years), and the fact that Boykin was animated by a particularly egregious set of circumstances, defendant is incorrect when he argues that the new rules of preservation and criminal court procedure announced in Tyrell did not represent a “dramatic shift away 22 from customary and established procedure” in New York’s criminal courts. Lastly, these new rules regarding plea allocutions are grounded in principles of state law. Since Boykin, the Supreme Court has never held that the due process requirements announced in Boykin are implicated in misdemeanor cases where a defendant is not facing any jail time. From Boykin, this Court, in the context of a felony plea where the consequences of the plea included prison time, extracted the general principle that a record that is “silent will not overcome the presumption against waiver.” Over time, that principle was broadly applied to felony cases in New York. While this Court cited Boykin for that proposition, the result was not “compelled” by Boykin. Mitchell, 80 N.Y.2d at 519. Indeed, as stated, Boykin’s requirement was motivated by and directly linked to the particularly egregious circumstances of that case. Boykin certainly did not mandate an “affirmative showing on the record” of a waiver of constitutional rights in low level cases with no risk of jail time. Thus, while New York’s iteration of the Boykin rule “has underlying due process concerns, its protective scope is broader than the constitutional rights it encompasses.” Id. Evidencing this reality are the state cases upholding the sufficiency of plea allocutions in the absence of formal Boykin allocutions and the fact that the practice of accepting pleas in such cases without requiring an on-the-record waiver 23 of Boykin rights was pervasive and commonplace in New York’s criminal courts. In sum, the People recognize that for many years courts have held that a waiver of constitutional rights cannot be established from a silent record. At first glance, there is an analytical temptation to reach no further than this declarative in evaluating whether Tyrell announced a new rule. Upon closer examination, however, that temptation reveals its falsity. To view this declarative in a vacuum is to ignore the context of its origin and the context of its application over the decades. In essence, if Tyrell did not create two new rules of law, it would be inexplicable that for decades, many lower courts did not conduct Boykin-style allocutions and appellate courts routinely found Boykin- based claims unpreserved if no motion to withdraw the plea was made. C. The Pepper Factors Strongly Weigh in Favor of Prospective Application of the New Rules Announced in Tyrell. Under the three-pronged Pepper test, the new state rules announced in Tyrell should be applied prospectively.7 The first Pepper factor “looks to the purpose of the new rule and its relationship to the 7 The People have identified numerous aspects of Tyrell that are “new” for the purpose of this analysis. This Court need only find that any one of those rules is a state rule warranting prospective application in order to find that defendant is not entitled to the benefit of Tyrell. 24 fact-finding process.” Favor, 82 N.Y.2d at 265. One purpose of the rules announced in Tyrell was to ensure that a defendant contemplating pleading guilty understands “what the plea connotes and . . . its consequence.” Boykin, 395 U.S. at 244. An ancillary benefit of a formal, on-the-record plea allocution is the “prevent[ion] [of] false claims of the ‘if I had only known’ variety by defendants who later change their minds about their pleas.” Tyrell, 22 N.Y.3d at 368 (Smith, J., dissenting); see also Boykin, 395 U.S. at 244 (the creation of a record demonstrating the knowing, intelligent, and voluntary nature of a plea “forestalls the spin-off of collateral proceedings that seek to probe murky memories” [citations omitted]). Neither of these purposes, however, bears on the truth-seeking process or improves the accuracy of criminal convictions. Indeed, a Boykin claim need not be accompanied by a statement to the effect that the defendant’s guilty plea was invalid because he was actually innocent. See e.g. People v. Nixon, 21 N.Y.2d 338, 351 (1967) (defendant’s challenge to the sufficiency of his plea allocution included “no claim of innocence or facts in mitigation”). Thus, the purpose of the rules announced in Tyrell does not compel applying 25 the rules to all cases pending on direct appeal at the time Tyrell was decided. Defendant observes that Tyrell “is important to the truth-finding process because if a defendant is not given any Boykin rights prior to pleading guilty, he may not know that he is ceding rights, including the rights to a jury trial and to confront one’s accusers, that he might otherwise use to establish the truth in a trial” (defendant’s brief, p. 21). Defendant’s definition of “truth-finding,” however, overlooks a critical aspect of Tyrell. If the rules in Tyrell were primarily driven by “truth- finding,” Tyrell would have required a defendant to demonstrate that, had he been informed of his Boykin rights in his allocution, he would have exercised those rights at trial and engaged in the “truth-finding process.” Tyrell contains no such requirement. Instead, a defendant may obtain reversal even when, as a normative matter, the defendant would never have gone to trial, was aware of his rights, and was perfectly satisfied with his plea. Thus, while Tyrell, in part, may encourage truth-finding in an abstract sense, it cannot be said to be the primary purpose of the rules announced in Tyrell.8 Further weighing in favor of prospective application is the reliance by prosecutors and lower courts on the pre-Tyrell preservation rules. It 8 Moreover, dispensing with the preservation requirement in such cases is unrelated to the truth-finding process since, as will be discussed below, there are other methods of effective preservation which can be employed in these instances. 26 is well-established that prior to Tyrell, if a defendant entering a plea in criminal court did not preserve his challenge to the allocution, the issue was considered unpreserved for appellate review. Accordingly, prosecutors would not have felt compelled to prompt the court to allocute a defendant with respect to his trial rights in order to obviate an appellate challenge to the conviction. Similarly, lower courts routinely declined to advise defendants of their Boykin rights at criminal court plea allocutions, ostensibly, because intermediary appellate courts did not require such allocutions and, though faced with such cases after Louree, neither did this Court until Tyrell. Moreover, the reliance by prosecutors and courts was not simply qualitatively significant, but quantitatively extensive. Between 2009 and 2013 alone, there were tens of thousands of misdemeanor plea convictions, the majority of which were resolved by plea and without any incarceratory component See DCJS, 2008–2012 Dispositions of Adult Arrests, Bronx County, available at, http://www.criminaljustice/ojsa/dispo/bronx.pdf (accessed December 23, 2014). Thus, it can be inferred that prosecutors and lower courts routinely relied on these rules of preservation and procedure in thousands of cases. Defendant argues that courts have not relied on this practice because “it is not at all clear that, prior to Tyrell, most courts failed to inform defendants who pled guilty to misdemeanors about their Boykin 27 rights” (defendant’s brief, p. 21). Defendant supports this proposition by asserting that since “so few” convictions have been reversed for the failure to give Boykin rights it “strongly suggests that most courts had, in fact, been properly informing defendants about their constitutional rights.” This argument is deeply flawed for various reasons. Preliminarily, defendant’s attempt to attach the moniker “so few” to approximately thirty reversals in one year is troubling. There is nothing insignificant about thirty reversals. Indeed, if this case involved a circumstance where thirty defendants had been convicted on the basis of a rule of criminal law that later became obsolete, it is unimaginable that defendant would refer to those convictions as “so few.” That for the purposes of his present argument, it behooves defendant to minimize the reversal of so many convictions should not alter the objective reality that thirty reversals is far from trivial. Furthermore, that there have been approximately thirty reversals based on Tyrell in the year since Tyrell, does not establish that, in most other cases, courts advised defendants of Boykin rights. There are far more likely explanations for why there have not been a greater number of appeals on this basis. First, many defendants received sentences of a conditional discharge or a small fine and have little incentive to appeal, and risk losing a highly beneficial plea disposition and going to trial. This category includes defendants who pled guilty to non-criminal 28 offenses such as a marijuana violation or disorderly conduct. Second, there are likely administrative constraints on the resources an institutional defender such as the Legal Aid Society will expend to appeal low level misdemeanor convictions with no incarceratory sentence, where the client voluntarily accepted a plea disposition and, if successful on appeal, may not be able to obtain such a generous offer in the future. Indeed, as appellate counsel in Tyrell observed during oral argument, it is typically when defendants are facing collateral consequences, such as deportation, that a challenge to a plea becomes worthwhile. In many cases these concerns are not implicated and the defendants in those cases have little incentive to appeal. It would seem unlikely if, after Tyrell, lawyers from the institutional defender offices would comb through the files of every satisfied client who pled to a misdemeanor and whose case was still pending on direct appeal when Tyrell was decided, and solicit the client, who may have not thought about the case in some time, to file a direct appeal. Thus, it would be incorrect to negatively infer from these thirty reversals that, in most other cases, courts informed defendants of their Boykin rights. Moreover, in order to demonstrate reliance on the pre-Tyrell rules, it is not necessary to show, as defendant suggests, that “most” courts failed to advise defendants of their Boykin rights. Even if twenty percent of courts, for instance, did not advise defendants of Boykin 29 rights, that would still constitute significant reliance in thousands of cases. What was transformative about Tyrell is that, prior to Tyrell, many courts reasonably believed that the recitation of Boykin rights on the record was not mandatory. That some courts may have taken on the optional obligation of advising defendants of these rights does not alter this fact. Defendant further points to several cases he claims “already concluded that, as matter of law, the failure to give any Boykin rights to defendants who pled guilty was reversible error regardless of preservation” (defendant’s brief, p. 21). As stated, the only appellate division case defendant cites is entirely irrelevant; the People conceded reversal in that case and the issue of preservation was neither litigated nor discussed. Further, in at least one of the appellate term cases he cites, there were other factors motivating the courts’ decisions than the mere absence of Boykin rights. Moreover, in the year following Tyrell, there were approximately thirty reversals based on Boykin grounds and yet, in the nearly fifty years since Boykin was decided (and despite tens of thousands of misdemeanor pleas during that time), defendant can only point to four cases in support of his position, at least two of which are inapposite on their face. This disparity should be highly telling to this Court. 30 Perhaps most importantly, it is already clear that the Tyrell decision is having a significant effect on the administration of justice, as numerous convictions have been reversed based on plea allocutions that did not comport with the requirements set forth in Tyrell. This is not surprising because “criminal justice today is for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, __ U.S. __, 132 S. Ct 1376, 1388 (2012). A new rule implicating the criminal court plea bargaining process has the potential to unsettle thousands of convictions; indeed, 149,311 cases were resolved by guilty pleas in New York City criminal courts in 2012 alone. See Criminal Court of the City of New York: Annual Report 2012, at 18, available at http://www.courts.state.ny.us/COURTS/nyc/criminal/AnnualReport2012 .pdf (accessed December 30, 2014). If Tyrell’s holding is not limited to plea allocutions that occur after that case was decided, many other cases may be reversed. And, if the end result in such cases is vacatur of the conviction and dismissal of the accusatory instrument (Tyrell, 22 N.Y.3d at 366), valid criminal cases will be lost irretrievably because trial courts failed to advise defendants of trial rights that courts reasonably believed they had no legal reason to offer and that few defendants intended to exercise. Defendant argues that Tyrell will not have a significant effect on the administration of justice because, since Tyrell was decided, there 31 “has not been a cascade of reversals,” but, rather, “only about 29 reversals, all involving relatively minor offenses, for a failure to give Boykin rights.” Defendant further argues that, “since one year has passed since Tyrell was decided, many, if not most, of the cases that involved defendants who pled guilty, did not receive Boykin rights, and had a direct appeal pending prior to the Tyrell decision, have already been decided.” Defendant further notes that there will “probably be only tens of reversals as a result of Tyrell, rather than ‘tens of thousands’ – the absurd number that respondent bandies about, without any basis, in an effort to unduly scare this Court.” Lastly, defendant argues that defendants whose direct appeals are no longer pending will not be able to benefit from Tyrell because they cannot raise Boykin claims in a CPL § 440.10 motion. These arguments should be rejected. As stated, approximately 29 reversals is a significant number and could accurately be referred to as a “cascade.” Defendant would be hard pressed to find another case which singlehandedly resulted in nearly thirty reversals in the year following the case.9 Moreover, defendant’s 9 Defendant’s attempt to minimize the effect these cases had on the administration of justice, on the ground that they were “all involving relatively minor offenses,” undermines his argument regarding the practices of criminal courts in misdemeanor plea allocutions and the newness of Tyrell. Namely, if these cases were so minor that their reversal has no significant impact on the administration of justice, then why would courts believe that they were of sufficient significance to require a more robust allocution involving a recitation of Boykin rights; something neither the Supreme Court nor this Court has ever required in the context of misdemeanor pleas. Defendant should not be heard to stress the significance of these convictions in order to bolster his claim that the recitation of Boykin rights 32 claim that we have already seen most Tyrell-based reversals, and thus, there will be an insignificant impact on the administration of justice, overlooks several important aspects of the post-conviction process. First, many cases pending on direct appeal take years to perfect and New York’s appellate division is very generous with its extensions.10 There may be hundreds (if not thousands) of cases in which notices of appeal were filed, which were still pending on direct appeal when Tyrell was was always required, while simultaneously arguing that these convictions were for “minor” offenses, and, thus, their reversal had an insignificant effect on the administration of justice. 10 Indeed, appellate courts are loath to deprive defendants of appellate rights because their lawyers did not expediently appeal or when a defendant would not have been aware of the grounds for appeal. In fact, even when delays in the appellate process are caused by the defendant himself, the appellate division is known to accept belated appeals. For instance, in People v. Tavarez, 110. A.D.3d 473 (1st Dept. 2013), a defendant absconded in the middle of trial in 1996. After he was tried and sentenced in abstentia his attorney filed a notice of appeal. The defendant was returned on a warrant in 2008, and, in 2008 and 2010, filed additional notices of appeal. The defendant then moved to reconstruct the minutes regarding the court’s answer to jury notes. The People opposed the motion and moved to dismiss the appeal, arguing that the defendant, by absconding for over a decade, forfeited his appellate rights. The First Department ordered a reconstruction hearing (order #: M-1823, May 29, 2012), rejected the People’s motion to dismiss the appeal (order #: M-3895, November 8, 2012), and reversed the conviction. Similarly, in People v. Thomas, one of the cases decided with People v. Peque, 22 N.Y.3d 168 (2013), Thomas was convicted upon his plea of guilty in 1992. Prior to sentencing, he absconded for 16 years. After he was forcibly returned on a warrant, defendant moved to withdraw his plea. The court denied the motion and sentenced Thomas. Thomas then appealed. The Tavarez and Thomas cases demonstrate that a notice of appeal, and the concept of a case pending on direct appeal, have a far longer shelf life than defendant would have this Court believe. 33 decided, and which the appellate division may hear for years to come.11 Thus, there could still be dozens, if not hundreds or thousands of cases in the direct appellate pipeline. Moreover, this Court has opened the door to defendants raising such record-based claims in collateral attacks such as coram nobis applications or CPL § 440.10 motions, where a defendant was not advised of the right to appeal or where an attorney failed to heed a defendant’s request to file a notice of appeal. For instance, in People v. Syville, 15 N.Y.3d 391 (2010), this Court held that if a defendant could demonstrate that his attorney failed to heed his request to file a notice of appeal, the defendant could pursue an untimely appeal, even if the statutory period to appeal has elapsed. Recently, in People v. Grubstein, __N.Y.2d__, 2014 N.Y. Slip Op. 07924 (November 14, 2014), this Court held that a defendant could raise a record-based claim that he was deprived of his right to counsel on direct appeal where he was not informed of the right to appeal because this constituted a justifiable failure for not appealing. These two cases, taken together, will likely create significant post-conviction litigation in the Boykin context, and 11 The Appeals Bureau of the Bronx County District Attorney’s Office alone is currently handling at least five additional Tyrell-based briefs as of the filing of this brief. 34 may permit defendants to raise time-barred Boykin claims.12 This is particularly problematic for two reasons. First, Article 440 does not contain any statute of limitations, meaning that decades of defendants who were not informed of their Boykin rights may seek to obtain review of this otherwise time-barred claim. Second, it is reasonable to assume that, historically, the defendants most likely to have not been informed of their right to appeal, are those defendants pleading guilty to low level crimes, with no incarceratory component, in crowded and overburdened criminal courts and where there was little reason to think the defendants would ever want to appeal. It is precisely those individuals that the Tyrell rule targets. Thus, taking these cases together, within a matter of a few short years, this Court required a more robust allocution in cases where such allocutions were not traditionally required and where the failure to advise defendants of the right to appeal was likely most prevalent, and then created an exception whereby the failure to be advised of the right to appeal may permit a challenge on this ground in otherwise time-barred cases. In the same vein, the term “administration of justice” is not simply limited to a formulaic calculation of the number of reversals. Given the possible availability of coram nobis and/or CPL § 440.10, even 12 Indeed, in the case of People v. Luciano Rosario, APL-2014-00239, which is currently being briefed in this Court, a defendant is attempting to prevail on a Boykin claim in a coram nobis application. 35 if a defendant’s Boykin claims are not meritorious, there will still be significant post-conviction litigation, much as there was in the context of Padilla claims prior to this Courts determination that the rule announced in Padilla should not be applied retroactively. Baret, 23 N.Y.3d at 777. This, too, will have a significant effect on the administration of justice. Furthermore, as stated, many defendants may have filed notices of appeal in misdemeanor pleas. The First Department, in which many of these cases originate, does not have an automatic dismissal calendar. Thus, cases in which defendants filed notices of appeal in the First Department but never perfected those appeals are still technically pending on direct appeal, even if the notice of appeal was filed years prior to Tyrell. Thus, a defendant who pled guilty to a misdemeanor in 2009 and was not advised of his Boykin rights, and whose case would have otherwise have become final for the purposes of appellate review in 2010, may still assert that his case is pending on direct appeal because he filed a notice of appeal which is still pending and was never dismissed. In such cases the People would have to move to dismiss the appeal; it is unclear what the result of such a motion would be given the generosity of the Appellate Division regarding extensions and belated appeals. In order to prevent this situation, the People would have to expend significant resources identifying and affirmatively moving to dismiss notices of appeal in the 36 large number of misdemeanors where a notice of appeal was filed. Thus, whether a defendant was informed of the right to appeal, or was not informed of the right to appeal, there will be significant post-conviction litigation effecting the administration of justice. Accordingly, under the three factors of the Pepper test, the new rules announced in Tyrell should be applied prospectively. POINT TWO DEFENDANT’S CHALLENGE TO THE SUFFICIENCY OF HIS ALLOCUTION SHOULD BE REJECTED BECAUSE IT WAS NOT PRESERVED BY OBJECTION AND IS OTHERWISE WITHOUT MERIT. In 1979, this Court decided three cases that involved a defendant’s challenge to a guilty plea. See People v. Bell, 47 N.Y.2d 839 (1979); People v. Warren, 47 N.Y.2d 740 (1979); People v. Adams, 46 N.Y.2d 1047 (1979). In each case, this Court held that the defendant’s challenge was unpreserved because the defendant did not raise the issue in the court of first instance. None of these cases required a motion to withdraw a plea as the only method to preserve such a claim. Rather, in each case, the Court observed that the defendant failed to preserve his claim by motion to withdraw his plea or by otherwise alerting the court to the error. See Bell, 47 N.Y.2d at 839 (“not having raised the issue by motion to vacate or otherwise in the court of first instance, defendant's 37 contention that he should be relieved of his guilty plea has not been preserved for our review”) (emphasis added); Warren, 47 N.Y.2d at 740 (“Not having raised the issue by motion to vacate or otherwise in the court of first instance, no error has been preserved for review”) (emphasis added); Adams, 46 N.Y.2d at 1047 (“Not having raised the issue by motion to vacate or otherwise in the court of first instance, no error has been preserved for review”) (emphasis added). Four years later the Court reiterated this standard. See People v. Pellegrino, 60 N.Y.2d 636 (1983) (“Not having raised the issues by motion to vacate or otherwise in the court of first instance, defendant's arguments that he should be relieved of his guilty plea and that there was a failure to comply with CPL 400.21 have not been preserved for our review”) (emphasis added). In 1988, in Lopez, this Court cited the above line of cases and observed that: “we have held that in order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea under CPL 220.60(3) or a motion to vacate the judgment of conviction under CPL 440.10.” Lopez, 71 N.Y.2d at 665. This recitation, however, omitted the fact that in the cases on which Lopez relied, preservation did not turn solely on whether the defendant moved to withdraw his plea, but on whether he moved to withdraw his plea or “otherwise” alerted the court to the error. The reason for this 38 omission is understandable; the Lopez exception to the preservation rule had nothing to do with the manner of preservation or the defendant’s practical ability to preserve his claim. Rather, citing an older line of cases (see People v. Serrano, 15 N.Y.2d 304 [1965]), the Court found a wholesale exception to the preservation doctrine on the ground that the defendant’s on-the-record negation of an element of the crime alerted the court, in and of itself, to the error, and, thus, preservation was not required. In creating this exception, Lopez was never called on, and had no need to articulate an exhaustive list of possible methods of preserving challenges to guilty pleas.13 Nevertheless, the observation in Lopez regarding certain methods of preserving a challenge to a plea soon became commonly quoted by certain of New York’s appellate courts, which routinely relied (and continue to rely) on Lopez for the notion that the failure to move to withdraw a plea renders a challenge to the plea unpreserved. See e.g., People v. Butler, 200 A.D.2d 515 (1st Dept. 1994) (“Defendant's contention that his pleas were not knowingly and intelligently entered has not been preserved for review, as a matter of law, since he did not move to withdraw the pleas or to vacate the judgment of conviction”), 13 Notably, that CPL § 220.60 provides a statutory mechanism for a defendant to move to withdraw his plea prior to sentencing, does not mean that such a motion is the only way to preserve a challenge to a guilty plea. On its face, this statute has nothing to do with preserving claims for appeal. 39 citing Lopez, 71 N.Y.2d at 665; People v. Sanchez, 112 A.D.3d 646 (2d Dept. 2014) (same).14 These courts, like Lopez, omitted the language regarding other methods of preserving such challenges. Not only was this view of Lopez not mandated by that case, it ran counter to the numerous cases on which Lopez relied and to the context in which Lopez made this observation. Moreover, while numerous appellate courts have relied on this narrower view of preservation, vestiges of the pre-Lopez, objection- based preservation rule have survived. Indeed, the Second Department has repeatedly held that a defendant’s challenge to a guilty plea is unpreserved where the defendant did not move to withdraw the plea “or otherwise raise the issue before the trial court.” See, e.g. People v. Jackson, 114 A.D.3d 807 (2d Dept. 2014); People v. Nugent, 109 A.D.3d 625 (2d Dept. 2013) lv. denied, 22 N.Y.3d 998 (2013); People v. Whitaker, 27 A.D.3d 499 (2d Dept. 2006). The Third and Fourth Departments have also utilized such language in the context of guilty pleas. See, e.g., People v. Thomas, 17 A.D.3d 1123 (4th Dept. 2005) (a defendant’s challenge to his guilty plea is unpreserved where he does 14 Reinforcing this view, in People v. Ali, 96 N.Y.2d 840 (2001), this Court overturned a finding by the First Department that an objection at sentencing was sufficient to preserve a challenge to a guilty plea absent a motion to withdraw a plea. 40 not object or move to withdraw his plea); People v. Jennings, 8 A.D.1067 (4th Dept. 2004); People v. Raleigh, 121 A.D.3d 1412 (3d Dept. 2014).15 In Tyrell, the appellate term found the defendant’s claim unpreserved on the ground that he did not move to withdraw his plea. No mention was made of the fact that the defendant did not object, an alternative method of preservation contemplated by this Court’s precedent and by various other intermediary appellate courts. Additionally, on appeal to this Court, this alternative basis of preservation was never raised by the parties or litigated. Understandably, therefore, this Court in Tyrell found that the preservation rule relied on by the lower court was incongruous, in that it makes little sense to require a defendant to move to withdraw his plea prior to sentencing in order to preserve his claim when there is no time for a motion between the conviction and sentence. This Court had no occasion, however, to address the more fundamental, and fully feasible preservation requirement discussed in this Court’s pre-Lopez 15 From an historical and jurisprudential perspective, it is understandable why the use of an objection to preserve a challenge to a guilty plea was overlooked by some courts in the years after Lopez. After Lopez, and prior to Tyrell, the simplest way to dispose of an appellate challenge to a guilty plea was to rely on the basis that a defendant’s claim is unpreserved when the defendant did not move to withdraw a plea. In the absence of such a motion, there was no need for an appellate court to also cite a defendant’s failure to object as an additional basis on which to find a claim unpreserved. It is only now, after Tyrell, that the necessity and viability of the more fundamental preservation requirement of registering an objection becomes apparent. 41 precedent and in numerous appellate division cases – preservation by objection. This alternative preservation requirement does not implicate the concerns that motivated this Court to find that a motion to withdraw a plea is not required to preserve a challenge to a plea allocution where the plea and sentencing occur at the same time. Namely, while a motion to withdraw a plea may not be a feasible requirement to impose on a defendant when the plea and sentence occur at the same time, there is nothing about the timing of a misdemeanor guilty plea that would prevent a defense attorney from saying the words: “objection, would the court advise my client of his Boykin rights.” In this case, for instance, the Legal Aid attorney who represented defendant did nothing to alert the court to its failure to advise his client of his Boykin rights, such as raising a simple objection at the time of the allocution. Nothing prohibited counsel from raising such an objection, and there is nothing in the record to suggest that such a protest would have been futile.16 Accordingly, notwithstanding the fact that defendant did not have adequate time to file a formal motion to withdraw his plea, nothing prohibited defendant from preserving his claim by objection. 16 If defendant wishes to claim his attorney was ineffective for not objecting, his recourse is to file a CPL § 440.10 motion. 42 One possible counterargument is that the salient feature of the preservation exceptions in Louree and Tyrell is a lack of knowledge by the defendant. Namely, if the problem with the allocution is an omission of information, the defendant cannot be expected to object on the basis of information he does not know. The flaw in this reasoning is that preservation never turns on whether the defendant is aware of the error. That is what attorneys are for. There is no preservation exception for the failure to object to the introduction of unduly prejudicial evidence because the defendant is likely unaware of the legal basis for the objection. It is the attorney that is charged with that knowledge. If a defendant’s knowledge of a legal error is required to trigger the preservation requirement there would be nothing left of the preservation doctrine. Additionally, this is not a situation involving consequences such as deportation and post-release supervision (or a situation involving a jury note under People v. Orama, 78 N.Y.2d 270 [1991]). A defense attorney is often unaware of these consequences and/or errors and, thus, it would be unfair to charge an attorney with knowledge of this information such that the attorney is required to register an objection. Rather, this case is about Boykin rights and, therefore, touches on the most basic of conversations attorneys have with their clients, i.e., the decision of whether it makes sense to fight the case or take a plea (a conversation defense attorneys are required to 43 have with clients and routinely have with clients). Every effective defense attorney is aware of these rights and is fully capable of objecting if the rights are not offered in an allocution. Thus, it would be particularly anomalous in this context to create a preservation exception based solely on the notion that, as a normative matter, both a defendant and his or her attorney were unaware of Boykin rights and, therefore, would not have thought to object to the allocution. Furthermore, it is evident that a defendant’s knowledge of a right or consequence was not the salient feature of the preservation exception announced in Tyrell. If a defendant’s actual knowledge of these constitutional rights was the primary motivating factor in Tyrell, there would be little reason to dispense with a prejudice analysis. Furthermore, if the salient feature of the preservation exception in Tyrell was the defendant’s lack of knowledge of the error, or a mode of proceedings error, the exception announced in Tyrell would extend to all plea allocutions, both misdemeanor and felony, irrespective of whether there is a time-gap between the allocution and sentence, since this time- gap would have no bearing on a defendant’s knowledge of the error or on whether the initial error was a mode of proceedings error. However, in the months preceding Tyrell, and in the year following Tyrell, in the context of felony pleas where there is a time-gap between the plea and sentencing, intermediary appellate courts held challenges to guilty 44 pleas unpreserved where a defendant did not object or move to withdraw the plea and, in some of those cases, this Court denied leave to appeal. For pre-Tyrell cases see e.g., People v. Irvin, 106 A.D.3d 1105, lv. denied, 22 N.Y.3d 1088 (2013); Nugent, 109 A.D.3d at 625, lv. denied, 22 N.Y.3d 998 (2013); for post-Tyrell cases see e.g., People v. Williams, 118 A.D.3d 1429 (4th Dept. 2014); Jackson, 114 A.D.3d at 807; People v. Easter, 122 A.D.3d 1073 (3d Dept. 2014); People v. Grant, 121 A.D.3d 1016 (3d Dept. 2014); People v. Lofton, 115 A.D.3d 989 (2d Dept. 2014), lv. denied, 23 N.Y.3d 1039 (2014); People v. Glusko, 114 A.D.3d 701 (2d Dept.), lv. denied, 23 N.Y.3d 1062 (2014). Since the preservation requirement is still applicable in cases where there is a gap between the conviction and sentence, it is evident that the preservation exception announced in Tyrell was primarily motivated by the defendant’s inability to make a plea withdrawal motion, not by the defendant’s lack of knowledge of the error, or the notion that there was a mode of proceedings error. As stated, that motivating factor has no bearing on whether a defendant can register a simple objection. Not only is requiring preservation by objection supported by this Court’s precedent, it is also reasonable, fair and provides defendants with a realistic method to preserve their claims while advancing the salient benefits of preservation discussed in Lopez and other cases. From a systematic perspective, if allocuting a defendant regarding 45 Boykin rights at a misdemeanor plea allocution with no incarceratory sentence is as longstanding and enshrined a principle as defendant argues, it would be fundamentally unfair to permit an attorney to simply stand by silently while the court overlooks the recitation of these rights. This is particularly true where the omission seemingly creates a silver bullet of per se reversal to be used whenever the defendant chooses, and without making any showing of prejudice. Moreover, on the facts of this case (and many cases like it), it runs counter to every notion of fairness for an attorney not to call a deficiency in a court’s allocution to the court’s attention but for another attorney from the very same office to then argue that the court’s error requires reversal. Courts should not countenance this type of “sandbagging,” i.e., pretending that there is no problem with the plea allocution so that the plea becomes, in effect, automatically voidable on appeal and results in either outright dismissal of the charges or the charges becoming unprosecutable because of the passage of time. See Wainright v. Sykes, 433 U.S. 72, 89 (1977) (observing that the failure to “honor contemporaneous-objection rules” may encourage “sandbagging” on the part of defense lawyers). Additionally, as stated, when there is a break between the plea and sentencing - as is the case in most felony pleas – a defendant is still required to move to withdraw the plea in order to preserve a challenge to the plea (see, p. 44, supra). Thus, if no preservation of any sort is 46 required in the case of misdemeanor plea allocutions where the plea and sentencing occur at the same time, it would create a deeply troubling disparity in preservation rules between misdemeanors and felonies. For instance, a defendant pleading guilty to manslaughter with a promised sentence of twenty years, who failed to move to withdraw the plea or otherwise object, would be unable to challenge a Boykin failure in the plea on appeal, while a defendant who pled guilty to a low level misdemeanor of possession of marijuana (Penal Law § 221.10), and was sentenced to a small fine, could challenge the plea on appeal without having made any objection of any sort. Such a topsy- turvy legal landscape could not be what was intended in Tyrell. In any event, a holistic view of this case demonstrates that defendant was aware of his Boykin rights. In Tyrell, this Court observed that: the records do not affirmatively demonstrate defendant's understanding or waiver of his constitutional rights. In each case, there is a complete absence of discussion of any of the pertinent constitutional rights; none are addressed by the court, defense counsel or defendant. Nor is there any indication that defendant spoke with his attorney regarding the constitutional consequences of taking a plea—in fact, these cases were both resolved during arraignment within days of arrest. 47 Tyrell, 981 N.Y.3d at 366. Here, the nature of defendant’s claim, his criminal history, and the circumstances of his representation indicate that he was aware of the rights he was forfeiting by pleading guilty. Prior to Tyrell, a defendant’s unpreserved claim that the plea court violated his Fifth Amendment rights by failing to advise him of the rights he was forfeiting by pleading guilty to a low-level offense with no jail sentence would have been resoundingly rejected. See e.g., Lopez, 35 A.D.3d at 763. Thus, absent preservation, a defendant’s best course of action would be to assert that his attorney failed to advise him of these rights and thereby violated the defendant’s Sixth Amendment right to counsel. Such a claim could be raised in a CPL § 440.10 motion and would not require preservation. Here, notwithstanding the clear state of the law prior to Tyrell, defendant, who was represented by attorneys from The Legal Aid Society both at his plea and on appeal, never claimed that his plea attorney was ineffective for failing to apprise him of the rights he was forfeiting by pleading guilty. Instead, defendant raised an unpreserved Fifth Amendment claim that had been repeatedly rejected in other cases. The Legal Aid Society, among which are some of the most well trained and competent members of the defense bar, would certainly not have undertaken defendant’s appeal without defendant’s waiver of this clear conflict of interest. If defendant waived this conflict, and declined to attack his trial attorney’s 48 performance, it would most likely be the result of his knowing that the Legal Aid Attorney that represented him at his plea had, in fact, fully advised him of the rights he was waiving by pleading guilty and/or that defendant, who had previously pled guilty once in 1997, five times in 1998, once in 1999, and once in 2000, was otherwise aware of these rights. This is particularly true given that defendant was represented by an attorney from the Legal Aid Society at his plea and that, according to the standards promulgated by the National Legal Aid & Defender Association “[p]rior to the entry of the plea, counsel should make certain that the client understands the rights he or she will waive by entering the plea and that the client’s decision to waive those rights is knowing voluntary and intelligent.” See, Performance Guidelines for Criminal Defense Representation, Guideline 6.4(a)(1), available at http://www.nlada.org/Defender/Defender_Standards/Performance_Guid elines (last visited January 2, 2015). Additionally, unlike one of the allocutions discussed in Tyrell, defendant stated on the record that he wanted to plead guilty. Accordingly, the record, including defendant’s previous criminal history, coupled with the nature of his claim and the fact that his plea and appellate attorneys worked for the same organization, indicate that defendant was aware of the rights he was forfeiting by pleading guilty and renders an evaluation of defendant’s claim solely under the Fifth Amendment problematic. 49 Lastly, if this Court finds that the rule established in Tyrell should be applied to defendant’s 2009 conviction, reaches the merits of defendant’s claim, and rules in his favor, the accusatory instrument should not be dismissed. “A guilty plea . . . generally marks the end of a criminal case, not a gateway to further litigation.” People v. Keizer, 100 N.Y.2d 114,118 (2003). This will only be true, however, if there is some incentive for defendants to adhere to the terms of their plea bargains. One such incentive is “the nature of relief secured by a successful . . . challenge to a guilty plea,” which is generally the opportunity to withdraw the plea and proceed to trial.” Padilla v. Kentucky, 559 U.S. 356, 372–73 (2010). A defendant contemplating challenging his guilty plea must consider whether that challenge is worth “los[ing] the benefit of the bargain obtained as a result of the plea.” Id. at 373. If a Tyrell error mandates dismissal of the accusatory instrument it would eviscerate this principle in thousands of cases.17 Moreover, even though defendant’s sentence may have been served, for penological purposes, it is “relevant whether defendant committed the crime.” People v. Allen, 39 N.Y.2d 916 (1976). Even in misdemeanor cases with no incarceratory component, a defendant’s criminal history is relevant in many ways, including the setting of bail in future cases and the type of plea disposition the People may be 17 In Tyrell, the People conceded the dismissal of the accusatory instrument and, therefore, Tyrell is of little precedential value on this point. 50 willing to offer in future cases. Dismissing the accusatory instrument may deprive a future bail court and the People of this probative information. Therefore, irrespective of the sentence, the record of a defendant’s criminal history furthers the penological goal of deterring future criminal behavior. Additionally, the cases cited by Tyrell for the proposition that the accusatory instrument should be dismissed all involved defects in the underlying accusatory instruments, thereby rendering those cases un- prosecutable. It is a very different matter when, as here, the error is that a defendant was not advised of certain rights and, thus, may not have been in a position to make an informed decision about whether to plead guilty. In such a case, there is no defect in the accusatory instrument or procedural impediment to re-prosecution. The proper remedy should be to return the defendant to his pre-plea status, and, after the defendant is properly advised of rights, permit the defendant to plead guilty and obtain the original bargained for disposition (for which he or she will likely obtain time-served), or exercise those rights by electing to go to trial. There is little reason, however, to simply wipe the slate clean. Put differently, if the error is that the defendant was deprived of the ability to make an informed choice, the fair remedy is to put the defendant in a position to make an informed choice, not to dismiss the accusatory instrument. 51 In sum, over the past few years, this Court has engaged in the laudable purpose of protecting defendants in plea proceedings by requiring on-the-record judicial admonitions during plea allocutions (see e.g., Peque, 22 N.Y.3d at 168; Louree, 8 N.Y.3d at 541. If applied prospectively only, such rules ease appellate review and lessen the administrative burden of post-conviction litigation, in addition to the salutary purpose with regard to advancing the knowing and voluntary nature of misdemeanor pleas. However, applied automatically to every past misdemeanor plea, as defendant would have it, the rule would primarily advance uncertainty and gamesmanship. Moreover, by doing away with the need for a prejudice analysis and any form of preservation, this Court may have done significant practical harm to those same defendants it was trying to protect. Namely, if this Court’s concern is to protect the rights of defendants and to ensure that defendants are making informed choices in the plea context, and not simply to facilitate efficient and expedient appellate review, then requiring a more robust, pro forma judicial allocution is simply not the best way to achieve that goal. As this Court observed in Nixon, 21 N.Y.2d at 354, “if independent and good advice in the interest of the defendant is the goal, it is more important that he consult with competent counsel than that a harried, calendar-conscious Judge be the one to perform the function in displacement of the lawyer.” This Court 52 further observed that while “the essence of justice may be procedure there can be a point at which the administration of justice becomes only procedure and the essence of justice is lost. Id. at 356.18 Thus, the far better method is to encourage a dialogue between defense attorneys and their clients. It is that relationship, far more so than a cursory allocution, that leads to informed decision-making. By seemingly permitting per se reversal for a court’s failure to advise of Boykin rights without a requirement of preservation or a showing of prejudice (followed by the possible dismissal of the accusatory instrument), this Court eliminated any legal incentive a defense attorney might have to correct a faulty allocution, knowing that, later, the client would possess a silver bullet of reversal. In the same vein, by funneling these cases into the pipeline of direct appeals, defense attorneys have little chance 18 See also Jenny Roberts, The Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions: “Involuntary Commitment of Sexually Violent Predators” 93 Minn. L. Rev. 670 , 684 (2008), quoting Richard Klein, Due Process Denied: Judicial Coercion in the Plea Bargaining Process, 32 Hofstra L. Rev. 1349, 1401 (2004) (stating that “[A]ny participant in the criminal justice system knows that the colloquy between the judge and the defendant is scripted, ritualistic, perfunctory, pro forma, and quite meaningless”); see also Markus Dirk Dubber, American Plea Bargains, German Lay Judges, and the Crisis of Criminal Procedure, 49 Stan. L. Rev. 547, 552 (1997) (“Efforts to improve plea bargaining should focus on its most disturbing defects: the hypocrisy that reduces the public plea colloquy before the judge to a carefully rehearsed charade during which the participants merely enact a script that was carefully crafted in the backroom of the prosecutor's office ....”); Michael M. O'Hear, Plea Bargaining and Procedural Justice, 42 Ga. L. Rev. 407, 460 (2008) (“[I]n many cases, the rituals surrounding plea acceptance and sentencing lack real significance as decision-making processes .... Procedural justice in these contexts may thus appear an empty formality and serve only to highlight the absence of procedural justice in reaching the plea deal”). 53 of being deemed ineffective for failing to advise defendants of these rights and, thus, will not be motivated to provide such advice to defendants by any threat of negative professional consequences. Additionally, to the extent that defense attorneys know that courts will include such admonitions on the record, they may feel less inclined to spend precious time discussing those same consequences with their clients off the record. If this Court, relying on the pre-Lopez cases, required minimal preservation and/or the most modest showing of prejudice, it would create a proper balance between the Fifth and Six amendments, protect defendants, and protect the integrity of the plea process. Accordingly, the rules announced in Tyrell should be applied prospectively and, in any event, defendant’s claim should be rejected because it not preserved by objection and is otherwise without merit. 54 CONCLUSION THE JUDGMENT SHOULD BE AFFIRMED IN ALL RESPECTS. Respectfully submitted, ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent _________________________ BY: ORRIE A. LEVY JOSEPH N. FERDENZI ORRIE A. LEVY Assistant District Attorneys Of Counsel January 16, 2015 55 PRINTING SPECIFICATION STATEMENT This brief was prepared on a Microsoft Word processing system, in the Time New Roman typeface, font size 14 in the text and headings, and size 12 in the footnotes, and it contains 11,183 words as counted by the Microsoft Word counting system. 56