The People, Respondent,v.Joseph Conceicao, Appellant.BriefN.Y.October 20, 2015" Argued by JENETHA O. PHILBERT NEW YORK SUPREME COURT Appellate Term - First Department THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOSEPH CONCEICAO, De!enaant-Appellant. RESPONDENT'S BRIEF JOSEPH N. FERDENZI JENETHA G. PHILBERT Assistant District Attorneys O/Counsel ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent Bronx, New York 10451 (718) 838-6276 TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................... ii " f <. i~, STATEMENT ................................................................................................ 1 ,,~ . '. QUESTION PRESENTED ............................................................................ 2 >f ~ " ANSWER ........................................................................................................ 2 :': : , ", \ l' ,~ THE FACTS .................................................................................................. 3 ': " " '. 'i The Complaint .......................................................................................... 3 ',"/ ;? The Arraignment, Plea and Sentencing .................................................... 3 ' :: ARGUMENT ............................................................................. 5 DEFENDANT'S CLAIM WAS NOT PRESERVED FOR APPELLATE REVIEW, AND MOREOVER, HIS GUILTY PLEA WAS KNOWIBNGLY, VOLUNTARILY, AND INTELLIGENTLY ENTERED. CONCLUSION ............................................................................................ 19 0; ',~ ',' , . '," !:f ;' ~r ' " . , l ',i r. . 'I I· 1 I ,I i I . , 1 II ! 1 , , ( , i < 'I ! Ii 11 { I , , , 1 if i I 1 t , '1 'I I j ,r TABLE OF AUTHORITIES FEDERAL CASES Boykin v. Alabama, 395 U.S. 238 (1969) ....................................... 7, 8 Hanson v. Phillips, 442 F.3d 789 (2d Cir. 2006) ................................. 13 Willbright v. Smith, 745 F.2d 779 (2d Cir. 1984) ............................... 16 Klonerv. U.S., 355 F.2d 730 (2d Cir. 1976) .................................... 17 STATE CASES People v. Pellegrino, 60 N.Y.2d 636 (1983) .................................................. 5 People v. Dowett, 2008 WL 2522240 (App. Term 1st Dept) ............ 6, 8, 9, 10 People v. Demonde, 111 AD.2d 867 (2nd Dept. 1985) .................................. 6 People v. Lopez, 71 N.Y.2d 662 (1988) ......................................................... 6 People v. Vickers, 2011 N.Y. Slip Op. 04297 (2011 WL 1990640)(1st Dept. May 24, 2011) .................................................................. 7,12,13 '. People v. Daley, 2011 WL 1459183 (App. Term 1st Dept) ........... 7, 8, 9,10 People v. Wearing, 47 AD.3d 405 (1st Dept. 2008) ................................ 7 People v. Johnson, 43 AD.3d 288 (lst Dept. 2007) ...................................... 7 People v. Fiumefreddo, 82 N. Y.2d 536 (1993) .................................... 7 People v. Harris, 61 N.Y.2d 9 (1983) ....................................................... 8, 14 People v. Nixon, 21 N.Y.2d 338 (1967) ....................................... 8, 10 People v. Paris, 305 A.D.2d 334 (lst Dept. 2003) ................................ 8 ii '. '\~ ," " '~ , :~ :'J: 1'· People v. Ford, 86 N.Y.2d 397 (1995) .................................................. '" .... 8 ,j~ :,,~ , People v. Alexander, 97 N.Y.2d 482 (1998) ..................................... 12 ',~\ ':~i~ People v. Frederick, 45 N.Y.2d 520 (1978) ...................................... .12 :* People v. Yu, 8 Misc.3d 128 (A) (App. Term 2d Dept. 2005) ................. 12 'l , ",) I; People v. Benjamin, 19 Misc.3d 1133(a) (N.Y. Crim. Ct., 2008) ......... 13, 15 'j: ',I: 09 ,I People v. Kalin, 12 N.Y.3d 225 (20 ) ........................................... 17 ~ " 0'1. ~ lr" STATUTES AND LEGISLATIVE MATERIALS j ",', Penal Law §220.03 .............................. ;; .................................................... 1, 12'" ~:' ",:;, , .• i Penal Law §70.15 (1) .................................................................................... 12 "j.' OTHER AUTHORITIES National Legal Aid & Defender Association, Performance Guidelines For Criminal Defense Representation " ,> , !.; , ." . . ;, ' .. ~ 0:; http://www.nlda.org ............................................................ Guide1ine 6.4(a)(I)'~ iii , . '(' SUPREME COURT OFTHE STATE OF NEW YORK APPELLATE TERM: FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, JOSEPH CONCEICAO, Defendant - Appellant. RESPONDENT'S BRIEF STATEMENT Joseph Conceicao appeals from a judgment of the Criminal Court of the State of New York, Bronx County (Collins, J.), rendered December 31, 2009, convicting him, following a plea of guilty, of Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law §220.03), and sentencing him to a conditional discharge; the condition being that defendant complete two days of soci al service. Defendant is currently at liberty having completed his sentence. QUESTION PRESENTED Whether defendant's guilty plea was knowing, voluntary, and intelligent? ANSWER Defendant's claim was not preserved for appellate review, nevertheless, his guilty plea was knowingly, voluntarily and intelligently entered, because he was not a novice to the criminal justice system at the' time his plea was entered, the crime t6 which he pled was not complex, with interlocking and subtle elements capable of confusing him, he received a beneficial plea agreement and was represented by competent counsel. 2 ,,~ --. " THE FACTS The Complaint By an accusatory instrument (Docket No. 2009BX082306) dated December 31, 2009, defendant was charged with Criminal Possession of a Controlled Substance in the Seventh Degree.' The Arraignment, Plea and Sentencing On December 31, 2009, the Honorable John <;::ollins arraigned defendant. The prosecutor noted that defendant would plead guilty to the docket, charging him with Criminal Possession of a Controlled Substance in the Seventh Degree, and receive a conditional discharge, the condition being that defendant complete two days of social service.2 Thereafter, the following colloquy took place: DEFENSE COUNSEL: Pleading gUilty to the docket, conditional discharge, two days social service. THE COURT: How do you plead to the charge of criminal possession of a controlled substance; guilty or not guilty. DEFENDANT: Guilty . . I According to the complaint, on or about December 3D, 2009, at the corner of East 229th Street and Barnes A venue, in The Bronx, Police Ofticer Robert J. Roda observed defendant "to have in his custody and control one (I) clear glass pipe containing a tar-like substance alleged to be crack/cocaine residue [on] the driver side floor in [a] vehicle driven by defendant." 2 All references denoted "P" refer to pages in the December 31, 2009 plea and sentencing minutes. 3 (P. 1). 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. .. 4 , " , .~ , ,. '~'. ARGUMENT DEFENDANT'S CLAIM WAS NOT PRESERVED FOR APPELLATE REVIEW, AND MOREOVER, HIS GUILTY PLEA WAS KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY ENTERED. Defendant claims that his guilty plea should be vacated because "the record in this case does not establish that [he] entered his guilty plea knowingly and * ,'.:. " "" -.J. • . . ~~. . voluntarily" (defendant's brief, p.5). Specifically, defendant states that (1) the court did not explain any of the Boykin rights that he waived by pleading guilty, (2) the record does not show that defendant discussed "any of this with his , ' ,attorney," and (3) "[he] did not make a factual allocution to the crime." Id. ,. '.r: Defendant's claim, however, is not preserved for appellate review, and in any event, his plea was knowingly, intelligently and voluntarily entered. Defendant contends that "the general preservation rule requiring a defendant to move to withdraw his plea prior to sentencing should not apply here since [he] , .' was sentenced in the same proceeding immediately after pleading guilty and, , ' '1' i , therefore, he did not have the opportunity to move to vacate his plea" (defendant's . J I~. The fact that defendant was sentenced in the same proceeding i~mediately after pleading guilty, however, does not excuse his failure to move to ~ :0; withdraw his plea before sentencing or vacate the judgment after conviction. See People v. Burney, 306 A.D.2d 173 (lst Dept. 2003) (where defendant pled 5 guilty to manslaughter in the tirst degree and was sentenced on the same day, . Court held that defendant did not preserve her challenge to the sufticiency of . plea allocution, since she did not move to withdraw her plea or vacate the .. judgment of conviction); People v. Hyman, 109 A.D.2d 803 (2d Dept. 1985) (same); People v. Pellegrino, 60 N.Y. 2d 636 (1983) ("[N]ot having raised the· issues by motion to vacate or otherwise in the court of tirst instance, defendant's arguments that he should be relieved of his guilty plea have not been preserved for our review); People v. Dowett, 20 Misc.3d 127(A), (App. Term, 1st Dept. 2008) '. (2008 WL 2522240) ("since defendant did not move to withdraw his guilty plea .. . his challenge to the validity of the plea is unpreserved"). Moreover, this case does not fall within the narrow exception to the·· preservation rule identilied by the Court of Appeals in People v. Lopez, 71 N.Y.2d 662, 666 (1988). That exception applies when the defendant's "recitation of the· facts underlying the crime pleaded to, clearly casts signiticant doubt upon the .. : defendant's guilt or otherwise calls into question the voluntariness of the plea." ld. Here, the record shows that defendant did not make any statement that would cast ... doubt on his guilt or the voluntariness of his plea. To the contrary, defendant stated to the court that he wished to plead guilty to the sole charge on the docket and receive a sentence as described by his attorney, the prosecutor ·ancl the court (P. I). Thus, defendant's claim is unpreservecl for appellate review. 6 Given the lack of preservation, defendant's only recourse is to seek this Court's interest of justice jurisdiction. There is nothing compelling, however, about this case that would require this Court to exercise its interest of justice jurisdiction to review defendant's claim. See, e.g., People v. Daley, 2011 N.Y. Slip Op. 50656(U) (App. Term, 1st Dept. 2011) (2011 WL 1459183) (this Court declined to review defendant's challenge to the plea allocution in the interest of justice); People v. Wearing, 47 A.D.3d 405 (lst Dept. 2008) (the court declined to review legal sufficiency claim in the interest of justice); People v. Johnson, 43 A.D.3d 288 (1st Dept. 2007) (same). In People v. Vickers, 2011 N.Y. Slip Op. , 04297 (2011 WL 1990640) (1st Dept. May 24, 2011), where defendant was " ;'!charged with prostitution and clrumed that her plea should be vacated since the trial . court never informed her of her Boykin rights, the Court exercised its interest of , ~ustice jurisdiction because defendant was only twenty years of age, this was her . :;: 'fIrst arrest and, "[m]oreover, it [could] not be determined on [the] record whether ''-' .. , -, . 'tlefendant knew exactly what she was pleading to." Vickers, 2011 WL 1990640 : '(1st Dept. May 24, 2011), Unlike the defendant in Vickers, defendant here was "--__ J-four years old that the time his plea was taken, he was not a novice to the justice system, and the plea minutes clearly describe the crime. 1:"""1:'. defendant's plea, albeit brief, does not constitute the type of case where Court's interest of justice jurisdiction should be invoked. 7 If this Court, however, were to find defendant's claim preserved for review or to invoke its interest of justice jurisdiction, defendant's claim is without merit. . A guilty plea must be entered knowingly, intelligently, and voluntarily. People v. Fiumefreddo, 82 N.Y.2d 536, 543 (1993). To that end, a trial court accepting a guilty plea must normally inform a defendant of certain rights that he is waiving as a result of pleading guilty, including the right to a trial, to confront the People's witnesses, and the right against self-incrimination. 1d.; Boykin v. Alabama, 395 U.S. 238,243 (1969). While a defendant must normally be advised of those trial rights that he will be forfeiting when pleading guilty, "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." People v. Harris, 61 N.Y.2d 9, 17 (1983) (citation omitted); see also People v. Nixon, 21 N.Y.2d 338 (1967) ("[I]t is highly doubtful that a uniform mandatory catechism of pleading defendants should be required."); People v. Paris, 305 A.D.2d 334 (1st Dept. 2003) (a trial judge is "not required to[] thoroughly advise [the] defendant of the rights he [is] waiving." [citations omitted]). Rather, "[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 in the particular criminal court are among the many factors which 8 I· .. , . the Trial Judge must consider in exercising discretion." Harris, 61 N.Y.2d at 16. Thus, a trial judge's underlying task when accepting a guilty plea is not to simply recite a litany of rights being waived, but to "ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences." People v. Ford, 86 N.Y.2d 397, 402-03 (1995) (citing Harris, 61 N.Y.2d at 19; Boykin, 395 U.S. at 244). This case is similar to this Court's decisions in People v. Dowett, 20 Misc.3d 127(A) (App. Term, 1st Dept. 2008) (2008 WL 2522240) and People v. Daley, 2011 N.Y. Slip Op. 50656(U) (App. Term, 1st Dept. 2011) (2011 WL 1459183), where defendants' gl:lilty pleas were held valid. In Dowett, defendant pled guilty to a misdemeanor at arraignment. After defense counsel stated the terms of the agreement, which included pleading guilty to the docket and paying a nominal fine, the court stated to defendant, "Your attorney tells me you wish to plead guilty to the docket before the court. Do you wish to do that?" Defendant answered "Yes." Subsequently, the court confirmed that defendant was waiving his right to .. be prosecuted by information and sentenced defendant.3 In addition to finding that the defendant's claims concerning the voluntariness of the plea were unpreserved, this Court also rejected the claims on their merits, holding that the record J Additional facts were culled from the respondent's brief filed in the Appellate Term in People v. Dowett, a copy of which has been sent under separate cover to this Court and to defendant's uppeUate counsel. 9 ., ..... demonstrated that the plea was knowing, intelligent and voluntary, noting that ,; ".:; there is no mandatory uniform catechism when accepting a guilty plea. Dowett, ',; (2008 WL 2522240). Similarly, in Daley, defendant also pled guilty to a misdemeanor at , .. ( i " " arraignment. After defense counsel stated on the record, "he is going to plea[d];' guilty to the docket, conditional discharge, waive formal allocution, prosecution by the information," the court stated to defendant, "Mr, Daly [sic], is that what you ,i , , want to do, sir'?" Defendant responded "Yes, Your Honor.,,4 Also, as in Dowett, in ,:[ " addition to finding that defendant's claims concerning the voluntariness of the " pleas were unpreserved, this Court rejected the claims on their merits, holding th~t i ( ~ J the record showed that defendant's plea was knowing, intelligent and voluntary. 'I • ,,!. Daley, (2011 WL 1459183). Here, the facts are almost indistinguishable from those in Dowett and Daley.5 In this case, defendant pled guilty to the docket at arraignment, which contained one misdemeanor count, Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law §220.03). The court and defendant's attorney described the plea agreement. The court then confirmed with defendant that he , Additional facts were culled from the respondent's brief in filed in the Appellate Term in People v. Daley. a copy of which ahs been sent under separate cover to this Court and to defendant's appellate counsel. ; Although in Daley, defense counsel waived formal allocution, this court's decision clearly stands for the proposition that even though defendant was not read his Boykin rights, his gUilty plea was still voluntary, knowing and intelligent. 10 .'.-, ", I~ -.', , 1 ". :; ) .. ,1 , " .~ , , .' wished to accept the plea as described. The sentence imposed was nominal and defendant was free to go at the .conclusion of the colloquy. As in Dowett and Daley, it is clear that defendant entered his guilty plea knowingly, intelligently and voluntarily. Indeed, defendant was represented by counsel, whose effective assistance he does not contest. As the Court of Appeals has stated, "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." Nixon, 21 N.Y.2d at 354. Here, defense counsel assisted defendant in securing a favorable plea bargain and defendant unqualifiedly agreed to accept the plea bargain when asked by the court (P.l). Thus, defendant's competent representation demonstrates the overall knowing and voluntary nature of the plea proceedings. While defendant complains that his plea was not knowing, intelligent, or voluntary, defendant fails to address the presumption that must arise by virtue of his having been represented at the plea by an attorney from the Legal Aid Society, the very same organization who has assigned an attorney to represent him on this appeal. Given the deserved reputation for excellence enjoyed by the Legal Aid Society, it would be highly unusual if the attorney who represented defendant below did not ensure that his client's rights were fully protected and that the plea was entered into knowingly, intelligently and voluntarily. II Indeed, defendant has made no claim that the Legal Aid lawyer' representation was ineffective, either on appeal or in a CPL 440 motion. This is , quite understandable when one considers that Legal Aid attorneys are among th~,~;~i' . . '.:~ , ;> most well trained and competent members of the defense bar. It would, therefore;" " , ":," .. be unwarranted to assume that defendant's attorney did not fully explain to him the consequences and benefits of the plea, and the rights that were being waived.·· ,-' '1 . Surely, if that did not happen, Legal Aid would not have undertaken 1m appeal that -/ represents a potential conmct, unless the defendant waived the conmct. If' , ", defendant waived the conmct, it would most likely be the result of the defendant· .. "" .. ~ .;- knowing that the Legal Aid attorney had, in fact, fully advised him of the rights he :;: was waiving by pleading guilty. In a recent article that appeared in the New York Law Journal (May 26, ' 2011, p. 1-2, "First Offender's Plea Vacated After 'Abbreviated' Allocution"), an attorney for the Legal Aid Society's criminal appeals bureau commented on the Appellate Division's decision of the day before in Vickers, (2011 WL 1990640). He said, "the decision represents the Appellate Division's effort to make sure that, even recognizing how busy the Criminal Court docket is, that the court does certain minimal things before accepting the plea of guilty from somebody." It stands to reason, then, that the Legal Aid attorneys appearing on these cases, notwithstanding the busy dockets, are making sure that the courts do not take pleas 12 of guilt from their clients unless the clients know what they are doing.6 For this reason, it must be presumed, unless there is record evidence to the contrary, that if the Legal Aid Society represents the same client on appeal and claims that the plea court's allocution was deficient because it did not inform him of the so-called Boykin rights, but are not claiming ineffective assistance of counsel, that the defendant was, nevertheless, fully informed by counsel at the plea of the rights he was waiving. Given that presumption, if defendant wishes to press the claim that counsel did not make him aware of the constitutional rights he was giving up as a result of his guilty plea, he should be required to do so by way of a CPL 440.10 motion alleging ineffective assistance of counsel. Only in such a fashion will a complete record be developed. Moreover, defendant is not a novice to the criminal justice system or to the procedures accompanying guilty pleas. Defendant's criminal record, which pre- dates this guilty plea, contains many misdemeanor convictions obtained through guilty pleas taken at arraignment proceedings.7 Moreover, defendant's failure to 6 According to the standards promulgated by the National Legal Aid & Defender Association, "[pJrior 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, http://www.nlada.org, Performance Guidelines for Criminal Defense Representation, Guideline 6.4(a)(I). 7 As revealed by defendant's criminal history report contained within the official Bronx County Criminal COllrt file, defendant was convicted, upon pleas of guilty, of Attempted Petit Larceny on November 13, 1987, Unauthorized Use of a Vehicle in the Third Degree on February 22, 1993; Petit Larceny on November 23, 1998; Attempted Unauthorized Use of a Vehicle in the Third Degree on February 17, 1998; Unauthorized Use of a Vehicle 011 April 30, 1998; 13 , '. , raise any questions or protestations is a strong indication that he understood tile. nature and consequences of the proceedings and wanted to plead guilty. See People v. Alexander, 97 N.Y.2d 482, 486 (1998) (citing People v. Frederick, 45, . '. N.Y.2d 520, 525 [1978]). Defendant's beneficial plea agreement, in which he escaped any severe penalty, also demonstrates that his plea was knowing, intelligent, and voluntary. On the misdemeanor count to which he pled guilty, defendant faced a maximum sentence of one year imprisonment (Penal Law §220.03; 70.15[1]). The prosecutor's offer only required defendant to complete '. two days of social service (P. 1). Additionally, when a defendant pleads guilty to a misdemeanor, the requirements surrounding pleas to felony level cases may be relaxed, especially for: a person, like defendant, who is well versed in the criminal justice system. See e.g., People v. Yu, 8 Misc.3d 128(A) (App. Term, 2d Dept. 2005) (2005 N.Y. Slip Op. 50965[U]) (Belen, J., concurring) (opining that those not versed in the criminal justice system should be fully allocuted and demonstrate on the record that he has discussed the plea with an attorney); People v. Benjamin, 19 Misc.3d 1133(a) (N.Y. Crim. Ct., 2008) (2008 N.Y. Slip Op. 50986 [U]) ("[T]o mandate that every misdemeanor defendant wishing to plead guilty, no matter his or her sophistication Unauthorized Use of a Vehicle on May 28, 1998; Petit Larceny on August 10, 1998; Attempted Petit Larceny on April 6, 1999; and Attempted Petit Larceny on Febmary 10,2000. A copy of defendant's criminal history report has been sent under separate coYer to this Court and to defendant's appellate counsel. 14 ,,', . .. as a career criminal, be advised in full of the so-called Boykin rights, would grind the Criminal Court to a halt. Nor does decisional law require such an advisal.") i ~! (footnote and citations omitted). Further, defendant's reliance on Hanson v. Phillips, 442 F.3d 789 (2d Cir. 2006), is misplaced (defendant's brief, pp. 6-7). In Hanson, the defendant preserved his claim by filing a motion to withdraw his guilty plea prior to filing a direct appeal. Hanson, 442 F.3d at 793. Further, the knowing, intelligent, and voluntary nature of that plea was not clear, given that the trial court's colloquy consisted of "a series of confusing questions and statements in such a way that Hanson's occasionally interspersed 'yes' answers [left] wholly to conjecture, the meaning of his responses." Id. at 799. The record was also void of a statement that defendant "chose to plead guilty" thereby rendering his plea involuntary. Id. By contrast, here, as noted, defendant never preserved his claim for appellate review. Moreover, both the court and defendant's attorney outlined the plea bargain in straightforward terms to defendant and not in a series of confusing statements (P. I). Defendant's voluntary choice to plead guilty was demonstrated by the court's direct inquiry as to whether defendant wanted to plead "guilty or not guilty" to the charge of Criminal Possession of a Controlled Substance, to which defendant responded unequivocally "Guilty" (P. I). 15 Defendant also appears to misconstrue the Court of Appeals' decision in People v. Harris, 61 N.Y.2d 9, 17 (1983) (defendant's brief, p. 9). Defendant contends that Harris requires a trial judge to recite at least one of the so-called Boykin rights in order for a plea to be knowing and voluntary. The decision, however, does not focus on the "ritualistic recitation of the rights waived upon a guilty plea," but on whether the defendant fully understood the plea and its consequences. Harris stood for the realization that the evaluation of a knowing and voluntary guilty plea is case specific. ", Though 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. Harris, 61 N.Y.2d at 16-19. In keeping with the reasoning in Harris, defendant's plea was entered knowingly, voluntarily and intelligently. Here, defendant is not claiming that defense counsel was incompetent or that his participation fell below that of reasonable expectations. In addition, defendant, experienced in the criminal justice system, pled guilty in a busy arraignment part, and "to mandate that every misdemeanor defendant wishing to plead guilty, no matter his or her sophistication as a career criminal, be advised in full of the so-called Boykin rights, would grind the criminal COUlt to a halt." People v. Benjamin, 19 Misc.3d 1133(a) (N.Y. Crim. 16 I I , , -'f , 1 , I t t l i f I I . i t r· I , ~ I; I' ,I I · . . Ct. 2008). While defendant correctly states that, in each of the pleas upheld by the Court in Harris, at least one of the Boykin rights were mentioned, each of those cases involved a plea to a felony, and not, as here, a misdemeanor. Defendant further notes that in People v. Vargas, one of the cases consolidated with Harris, that since defendant was not informed of any of the Boykin rights, the Court vacated the plea. The decision, however, also deplores the fact that defendant and the court did not discuss the allocution whatsoever, and that defense counsel was merely a "stand-in" lacking any knowledge of the case. rd. at 22. Here, the court and defense counsel clearly stated the terms of the plea agreement on the record and defense counsel demonstrated his knowledge of the case and defendant's circumstances by securing a favorable plea agreement. Thus, the holding in Vargas is inapplicable to the facts of this case. Defendant also argues that his guilty plea should be vacated because it was "accepted without any factual allocution at all by [defendant]. Thus there was nothing in the record to cO.nfirm that [he] had, in fact, really committed criminal possession of a controlled substance in the seventh degree .... " (defendant's brief, p.ll). Due process, however, "does not mandate a factual basis inquiry by state courts." WiJIbright v. Smith, 745 F.2d 779, 780 (2d Cir. 1984). In Smith, defendant alleged that his guilty plea was "constitutionally invalid because the state trial court judge failed to ask him to explain, in his own words, the factual 17 basis for his plea." Smith, 745 F.2d 779, 780 (2d Cir. 1984). The court held that the circumstances in Smith "indicate[dJ that a factual basis inquiry was not necessary to assure due process." The court distinguished Smith from other cases in which the defendant was either mentally incompetent at the time he pled guilty, or gave "inconsistent responses to questions regarding commission of the crime charged." rd. at 781. Moreover, where the court is not faced with a complex crime "in which interlocking and subtle elements may be capable of generating confusion ... , or " where the defendant did not acknowledge his guilt in an ambiguous fashion, a mere recital of the charge coupled with an admission of guilt, will [] suffice to demonstrate a factual basis for a guilty plea." Kloner v. U.S., 535 F.2d 730, 734 (2nd Cir. 1976); See also, People v. Moore, 91 A.D.2d 1050 (2nd Dept. 1983, ("A plea of guilty will be sustained in the. absence of a factual recitation of the underlying circumstances of the crime if 'there is no suggestion in the record or dehors the record that the guilty plea was improvident or baseless"); People v. Kalin, 12 N.Y.3d 225, 231-232 (2009) ("[TJhe pleading standards of the Criminal Procedure Law would be extended beyond what the Legislature intended if we were to require the recitation of a mandatory catechism in an information that otherwise adequately identifies the particular drug, alleges that' the accused possessed that illegal substance, states the officer's familiarity with and training 18 ., ): i I. -{ 1 I j I J · -' . regarding the identification of the drug, provides some information as to why the officer concluded that the substance was a particular type of illegal drug, and supplies sufficient notice of the charged crime to satisfy the demq.nds of due process and double jeopardy"). Here, defendant was not mentally incompetent when he entered his guilty plea and when the court asked defendant, "How do you plead to the charge of criminal possession of a controlled substance; guilty or not guilty?" defendant's answer was anything but inconsistent (P.l). He responded "Guilty," without hesitation. Id. Also, Criminal Possession of a Controlled Substance in the Seventh Degree is not a complex crime requiring more than the court's recitation of the charge and defendant's admission of gUilt. Therefore, defendant's claim is without merit. In sum, defendant'S plea should not be disturbed on appeal. 19
