The People, Respondent,v.Joseph Conceicao, Appellant.BriefN.Y.October 20, 2015To be argued by PAUL WIENER (15 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- APL-2014-00122 JOSEPH CONCEICAO, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT PAUL WIENER Of Counsel November, 2014 SEYMOUR W. JAMES, JR. Attorney for Defendant- Appellant THE LEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street, 5th Floor New York, New York 10038 (212) 577-3455 TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................... iii PRELIMINARY STATEl'v1ENT ..................................................................... 1 QUESTION PRESENTED ............................................................................. 2 SUMMARY OF THE ARGUMENT ............................................................. 2 STATEl'v1ENT OF FACTS ............................................................................. 6 The Plea and Sentence .......................................................................... 6 The Appellate Term Decision ............................................................... 7 The Leave Application and SSM Letters ............................................. 8 ARGUMENT POINT PEOPLE V. TYRELL, 22 N.Y.3D 359 (2013) SHOULD APPLY RETROACTIVELY BECAUSE IT DID NOT CREATE A NEW RULE OF LAW, AND APPELLANT'S CONVICTION SHOULD BE REVERSED BECAUSE HIS CASE IS INDISTINGUISHABLE FROM TYRELL. U.S. CONST., Al'v1END. XIV; N.Y. CONST., ART. I, §6 ................................................................................................ 9 A. Tyrell did not announce a new rule oflaw .......................... 9 B. Even if Tyrell did announce a new rule, since it was derived from federal constitutional law it still applies retroactively ............................................................... 17 C. Even under the Pepper test, Tyrell still applies retroactively ............................................................................ 19 i D. The present case is indistinguishable from Tyrell ...................................................................................... 23 CONCLUSION ............................................................................................. 27 ii TABLE OF AUTHORITIES CASES Boykin v. Alabama, 395 U.S. 238 (1969) .............................................. Passim Florida v. Nixon, 543 U.S. 175 (2004) ......................................................... 11 Griffith v. Kentucky, 479 U.S. 314 (1987) ...................................... 4, 9,17-18 People v. Alcantara, 43 Misc.3d 129 (App. Term, 1st Dept. 2014) ............. 22 People v. Alejandro, 70 N.Y.2d 133 (1987) ................................................ 17 People v. Antommarchi, 80 N.Y.2d 247 (1992) ........................................... 18 People v. Bannister, 44 Misc.3d 143 (App. Term, 1st Dept. 2014) ............. 22 People v. Bialostok, 80 N.Y.2d 738 (1993) .................................................. 18 People v. Borofsky, 34 Misc.3d 142 (App. Term, 9th and 10th Jud. Dists. 2012) ....................................................................................... ' 15, 16 People v. Buelvas, 43 Misc.3d 142 (App. Term, 1st Dept. 2014) ................ 22 People v. Burrell, 53 N.Y.2d 849 (1981) ...................................................... 26 People v. Cantrell, 44 Misc.3d 131 (App. Term, 1st Dept. 2014) ................ 22 People v. De La Cruz, 43 Misc.3d 130 (App. Term, 1st Dept. 2014) .......... 22 People v. Dokes, 79 N. Y.2d 656 (1992) .................................................. 19-21 People v. Domin, 42 Misc.3d 149 (App. Term, 2nd Dept. 9th and 10th Jud. Dists. 2014) ...................................................................................... 22 People v. Dreyden, 15 N.y'3d 100, 104 (1981) ........................................... 26 People v. Facey, 30 Misc.3d 138 (App. Term, 2d, 11th and 13th Jud. Dists. 2011) .............................................................................................. 16 People v. Favor, 82 N.Y.2d 254 (1993) ...................................... 10, 13, 18, 19 People v. Fiumefreddo, 82 N.Y.2d 536 (1993) ............................. 2,10-12, 15 iii People v. Flynn, 79 N.Y.2d 879 (1992) ........................................................ 26 People v. Garcia, 45 Misc.3d 129 (App. Term, 1st Dept. 2014) .................. 22 People v. Gibson, 54 A.D.3d 350 (2d Dept. 2008) ....................................... 15 People v. Gibson, 44 Misc.3d 141 (App. Term, 1st Dept. 2014) ................. 22 People v. Gonzalez, 42 Misc.3d 135 (App. Term, 1st Dept. 2014) .............. 22 People v. Green, 43 A.D.3d 141 (App. Term, 2d Dept., 9th and 10th Jud. Dists. 2014) ...................................................................................... 22 People v. Harris, 120 A.D.3d 611 (1st Dept. 2014) ...................................... 22 People v. Harris, 61 N.Y.2d 9 (1983) ........................................... 2, 10, 11, 15 People v. Hill, 85 N.Y.2d 256 (1995) ........................................................... 20 People v. Jackson, 60 A.D.3d 576 (1st Dept. 2009), Iv. denied 12 N.Y.3d 926 (2009) ................................................................................. 8 People v. Jonas, 42 Misc.3d 135 (App. Term, 1st Dept. 2014) .................... 22 People v. Kaplan, 44 Misc.3d 144 (App. Term, 1st Dept. 2014) ................. 22 People v. Lopez, 71 N.Y.2d 662 (1988) ............................................... 3, 7, 15 People v. Louree, 8 N.Y.3d 541 (2007) .................................................... 3,15 People v. Luna, 43 Misc.3d 142 (App. Term, 1st Dept. 2014) ..................... 22 People v. Martello, 93 N.Y.2d 645 (1999) ............................................. 19, 21 People v. Matthews, 43 Misc.3d 130 (App. Term, 1st Dept. 2014) ............. 22 People v. McAlpin, 17 N.y'3d 936 (2011) ................................................... 16 People v. Mendez, 43 Misc.3d 130 (App. Term, 1st Dept. 2014) ................ 22 People v. Miller, 113 A.D.3d 573 (1st Dept. 2014) ...................................... 22 People v. Mitchell, 80 N.Y.2d 519 (1992) .......................................... .4, 17-21 IV People v. Moissett, 76 N.Y.2d 909 (1983) ..................................................... 8 People v. Moore, _ N.y'3d ---> 2014 WL 5365323 ............... 3, 13,22,24-26 People v. Munoz, 121 A.D.3d 577 (1st Dept. 2014) .................................... 22 People v. Nesbitt, 42 Mise.3d 143 (App. Term, 1st Dept. 2014) ................ 22 People v. Nixon, 21 N.Y.2d 338 (1967) ...................................................... 13 People v. Oliver, 43 Mise.3d 130 (App. Term, 1st Dept. 2014) ................... 22 People v. Pepper, 53 N.Y.2d 213 (1981) ................................... 4-5,18-20,23 People v. Pegue, 22 N.Y.3d 168 (2013) ................................................... 3,15 People v. Perez, 23 N.y'3d 89 (2014) .......................................................... 17 People v. Potts, 43 Mise.3d 141 (App. Term, 1st Dept. 2014) ..................... 22 People v. Robles, 22 Mise.3d 140 ................................................................. 16 People v. Rodriguez, 42 Mise.3d 143 (App. Term, 1st Dept. 2014) ............ 22 People v. Samed, 43 Mise.3d 130 (App. Term, 1st Dept. 2014) .................. 22 People v. Serrano, 2014 WL 4958214 (App. Term, 2d Dept., 2d, 11th and 13th Jud. Dists. 2014) ........................................................................ 22 People v. Scott, 45 Mise.3d 128 (App. Term, 1st Dept. 2014) ..................... 22 People v. Taylor, 43 Mise.3d 142 (App. Term. 1st Dept. 2014) .................. 22 People v. Turner, _N.Y.3d_, 2014 WL 536877 ..................................... 15 People v. Tyrell, 22 N.Y.3d 359 (2013) ................................................ Passim People v. Tyson, 44 Mise.3d 131 (App. Term, 1st Dept. 2014) ................... 22 People v. Valcin, 45 Mise.3d 128 (App. Term. 1st Dept. 2014) .................. 22 Polieano v. Herbert, 7 N.Y.3d 588 (2006) .................................................... 20 v CONSTITUTIONAL PROVISIONS N.Y. Const., Art. T, §6 ................................................................................. 2, 9 U.S. Const, Amend. XIV ............................................................................ 2, 9 STATUTES C.P.L. §220.60 .............................................................................................. 24 C.P.L. §260.20 .............................................................................................. 18 C.P.L. §440.10 ................................................................................... 14, 23-25 C.P.L. §470.05 ................................................................................................ 2 P.L. §220.03 .................................................................................................... 2 VI COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK, (l: Respondent, -against- JOSEPH CONCEICAO, Defendant-Appellant. ---------------------------------------------------------------------)( PRELThflNARYSTATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge for the Court of Appeals, granted May 21,2014 (A. I),' this is an appeal from an order ofthe Appellate Term, First Department (A. 2). That order, entered October 26, 2011, affirmed with an opinion a judgment entered in the Criminal Court, Bronx County, on December 31,2009, convicting appellant, after a guilty plea, of criminal possession of a controlled substance in the seventh degree [P.L. §220.03], and sentencing him to two days of social service (Collins, J., at plea and sentence). Numbers preceded by "A." refer to the pages of the Appendix; and, numbers preceded by "resp. letter" refer to the pages from respondent's ssm letter, dated August 6, 2014. 1 The issue raised on this appeal involves a question of law within the meaning of C.P.L. §470.05(2) since the voluntariness of a guilty plea is enforceable as a matter oflaw. People v. Tyrell, 22 N.Y.3d 359 (2013). No stay of execution of judgment pending appeal was sought, and appellant has served his sentence and is currently at liberty. OUESTION PRESENTED Whether People v. Tyrell, 22 N.Y.3d 359 (2013) should apply retroactively because it did not create a new rule of law, and whether appellant's conviction should be reversed because his case is indistinguishable from Tyrell. U.S. Const., Amend. XIV; N.Y. Const., Art. I, §6. SillV1MARY OF THE ARGUMENT People v. Tyrell, 22 N.Y.3d 359 (2013) did not announce a new rule of law and, thus, the decision should apply retroactively. In Tyrell, this Court merely applied the precedent of the United States Supreme Court in Boykin v. Alabama, 395 U.S. 239 (1969) and its progeny, as well as this Court's own precedent in People v. Harris, 61 N.Y. 2d 9 (1983) and People v. Fiumefreddo, 82 N.Y.2d 536 (1993) to the defendant's situation. Specifically, it reiterated that, prior to pleading guilty, a defendant must be 2 informed about his Boykin rights and that waiver of these rights cannot be presumed from a silent record. Since these are well-established principles the Court did not create a new rule. Recently, in People v. Moore, _ N.Y.3d -' 2014 WL 5365323 (2014), this Court, in effect, applied Tyrell retroactively when it reversed a conviction that, like appellant's case, was also pending on direct appeal prior to the Tyrell decision. Appellant's case should be treated no differently. Moreover, Tyrell did not create a new rule of preservation for Boykin claims. To the contrary, its holding that preservation was not required, particularly where the defendant had no practical ability to object to the plea allocution because the plea and sentence occurred during the same proceeding, was based explicitly on this Court's own preservation rules as declared in People v. Lopez, 71 N.Y.2d 662, 666 (1988), People v. Louree, 8 N.y'3d 541, 546 (2007) and People v. Peque, 22 N.Y.3d 168, 182-183 (2013). In addition, the Court clearly did not announce a new preservation rule because, prior to Tyrell, three different appellate courts -- the Appellate Division, Second Department; the Appellate Term, Second, Eleventh and Thirteenth Judicial Districts; and the Appellate Term, Ninth and Tenth 3 Judicial Districts -- had already concluded that the failure to give Boykin rights was reversible error regardless of preservation. Furthermore, respondent's claim that Tyrell announced a new rule because, according to respondent, prior to Tyrell courts were not required to give Boykin rights to defendants who pled guilty to misdemeanors but were not facing jail time, is incorrect. No cases support respondent's assertion that this was the law, which is hardly surprising since misdemeanors are criminal convictions that can have serious collateral consequences, thus requiring courts to ensure that such pleas are knowing, voluntary and intelligent. In any event, even assuming, arguendo, that Tyrell did announce a new rule, since the decision was derived from federal constitutional principles -- namely that a guilty plea cannot stand in the absence of an affirmative record that the defendant waived his three federal constitutional Boykin rights -- rather than solely from state law principles, Tyrell still applies retroactively to all cases pending on direct review. See Griffith v. Kentuckv, 479 U.S. 314 (1987); People v. Mitchell, 80 N.Y.2d 519, 526 (1992). Accordingly, New York State's three-part Pepper test should not be used. 4 Yet, even under the Pepper test, Tyrell should still apply retroactively since all three of the test's factors support retroactivity. First of all, the rule's purpose is to ensure that a defendant has been informed about his constitutional rights prior to pleading guilty, which is important to the truth- fmding process because, otherwise, the defendant might not know that he is ceding rights that he might have used to establish the truth in a trial. Second, courts did not rely on the prior practice both because, before Tyrell, many New York courts were, in fact, apparently giving Boykin rights to defendants who pled guilty to misdemeanors and because several appellate courts had already held that the failure to give any Boykin rights was reversible error regardless of preservation. Finally, Tyrell has not generated a floodgate of plea reversals; indeed, to date there appear to be only about 29 convictions that have been reversed for a failure to give any Boykin rights and, of these, almost all have come from a single county. Finally, appellant's conviction should be vacated because his case is indistinguishable from Tyrell. Here too, as in Tyrell, appellant pled guilty and was sentenced at the same proceeding and, thus, since he had no opportunity to move to withdraw his guilty plea, preservation was not required and his Boykin issue was reviewable on direct appeal. 5 Furthermore, just as in Tyrell, there was no affirmative showing in the record that appellant had received any of his Boykin rights. And, since appellant has completed his sentence and only a minor charge is involved, the information should be dismissed in the interest of justice. STATEMENT OF FACTS The Plea and Sentence On December 30,2009, appellant Joseph Conceicao was arrested and, in an information dated December 31, 2009, was charged with criminal possession of a controlled substance in the seventh degree. On December 3 1, 2009, appellant appeared for the first time before the court at arraignment and the following colloquy occurred: COURT OFFICER: Docket ending 306, Joseph Conceicao. Defendant charged with 220.03 and other related charges. MR. LEKAS (the prosecutor): Your Honor, on a plea to the docket, People recommend two days of social service. MR. TALIBER (the defense attorney): Pleading guilty to the docket, conditional discharge, two days social service. 6 THE COURT: How do you plead to the charge of criminal possession of a controlled substance; guilty or not guilty? THE 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. MR. TALIBER: Thank you, Judge. (A. 4-5). There was no further colloquy involving either the plea or the sentence. The Appellate Term Decision Appellant appealed to the Appellate Term, First Department, arguing that the record was insufficient to show that his plea was knowing and voluntary since he was never informed about his Boykin rights.2 On October 26, 2011, the Appellate Term affirmed the judgment, stating as follows: Defendant's present challenge to the adequacy of his plea allocution, which does not come within the narrow exception to the preservation requirement, is unpreserved for appellate review since he failed to move to withdraw his guilty plea or seek to vacate the 2 Appellant's case and the Tyrell cases were argued on the same day in the Appellate Term, First Department. 7 judgment of conviction (see People v. Lopez, 71 N.Y.2d 662, 665 [1988]), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. "Trial courts are not required to engage in any particular litany during an allocution in order to obtain a valid guilty plea in which defendant waives a plethora of rights," but it must be demonstrable, as here, that the plea was "voluntary, knowing and intelligent" (People v. Moissett, 76 N.Y.2d 909, 910-911 [1983]; see People v. Jackson, 60 A.D.3d 576 [2009], Iv denied 12 N.y'3d 926 [2009]) (A. 2-3). The Leave Application and ssm Letters On May 21, 2014, Chief Judge Lippman granted leave to appeal to the Court of Appeals (A. 1). Previously, on March 2, 2012, Judge Ciparick had denied appellant's application for leave to appeal (18 N.Y.3d 956) but, on November 27, 2012, she granted his motion for reconsideration and granted him leave to renew within 30 days after the Court rendered a decision in Tyrell (20 N.Y.3d 931). Appellant's case was then placed on status pursuant to Rule 500.11 ofthis Court's Rules of Practice. In his ssm letter, dated June 30, 2014, appellant argued that because the present case was indistinguishable from Tyrell, the Court should vacate the plea and dismiss the information. In its ssm letter, dated August 6, 2014, respondent contended that Tyrell should apply prospectively but that, in any 8 event, appellant's claim was unpreserved. On September 19, 2014, this Court terminated ssm review and placed the case on for full briefing and argument. ARGUMENT POINT PEOPLE V. TYRELL, 22 N.Y.3D 359 (2013) SHOULD APPLY RETROACTIVELY BECAUSE IT DID NOT CREATE A NEW RULE OF LAW, AND APPELLANT'S CONVICTION SHOULD BE REVERSED BECAUSE HIS CASE IS INDISTINGUISHABLE FROM TYRELL. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, §6. In its ssm letter, respondent contends that People v. Tyrell, 22 N.y'3d 359 (2013) should only apply prospectively and that, in any event, appellant's conviction should be affirmed because his claim is unpreserved. Respondent is wrong. Since Tyrell merely reinforced the well-settled principles enunciated in Boykin v. Alabama, 395 U.S. 238 (1969) and did not announce a new rule, it should apply retroactively. Moreover, even if, assuming, arguendo, that a new rule was announced, under Griffith v. Kentucky, 479 U.S. 314 (1987), since federal constitutional principles are 9 involved, the new rule would still apply retroactively to cases pending on direct appeal. And, in any event, even if New York State's Pepper test is used, Tyrell would still apply retroactively. Finally, since the present case is indistinguishable from Tyrell, appellant's guilty plea should be vacated and the information dismissed. A. Tyrell did not announce a new rule oflaw If a judicial decision does not announce a new rule of law, retroactive application of the decision will apply. People v. Favor, 82 N.Y.2d 254,263 (1993). The decision will be made retroactive "when a court's ruling merely applies previously established principles in a new factual setting or settles a question in a manner that was clearly foreshadowed." Id. By contrast, the judicial holding will announce a new rule of law if it overrules established precedent or there is a "sharp break" in the law or its established procedures. This Court did not announce a new rule in Tyrell. Instead, it merely applied the precedent of the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238 (1969) and its progeny, as well as the Court of Appeals' own precedent in People v. Harris, 61 N.Y.2d 9 (1983) and People v. Fiumefreddo, 82 N.Y.2d 536 (1993) to the defendant's situation in Tyrell. 10 In Boykin, the United States Supreme Court held that, when a defendant opts to plead guilty he must voluntarily and intelligently waive several federal constitutional rights. 395 U.S. at 242-243. These rights, known as Boykin rights, include 1) the privilege against compulsory self- incrimination, 2) the right to a jury trial, and 3) the right to confront one's accusers. Id. at 243. Moreover, the Supreme Court also held that a trial court must produce a record with an "affirmative showing" that the defendant's plea was knowing, intelligent and voluntary. Id. at 242. Because the Court could not "presume a waiver of these three important federal rights from a silent record" (rd. at 243), it reversed the defendant's conviction. See also Florida v. Nixon, 543 U.S. 175, 185, 187 (2004). Similarly, in People v. Harris, this Court, quoting Boykin, held that judges have a "vital responsibility 'to make sure [that the accused] had full understanding of what the plea connotes and of its consequence. '" 61 N.Y.2d 9, 19 (1983). It also held that the record "must show an intentional relinquishment or abandonment of a known right or privilege" and that a record that is "silent will not overcome the presumption of against waiver by a defendant of constitutionally guaranteed protections." 61 N.Y.2d at 17. In People v. Fiumefreddo, the Court of Appeals again reinforced the necessity 11 of an affirmative showing, stating: "There must be an affirmative showing on the record that the defendant waived her constitutional privilege against self-incrimination and her rights to a jury trial and to be confronted by witnesses." 82 N.Y.2d at 543. Consequently, in Tyrell, this Court merely applied these precedents to the defendant's situation when it stated: Succinctly put: Presuming waiver from a silent record is impermissible. The 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. 22 N.Y.3d at 365-366. And, notably, the Court specifically cited Boykin, Harris and Fiumefreddo for this proposition and observed that this was a "well settled proposition." Id. Thus, just as in Boykin, since there was no affirmative showing in Tyrell that the defendant was given any Boykin rights, the Court likewise found his pleas to be improper. Accordingly, since Tyrell merely reinforced and applied "previously established principles" 12 (People v. Favor, 82 N.Y.2d at 263), the Court of Appeals did not create a new rule oflaw.3 Moreover, in People v. Moore, _ N.Y.3d _, 2014 WL 5365323 (2014), this Court recently reversed a conviction on the ground that the defendant was not given any Boykin rights in a case that, like this one, was pending on direct appeal prior to the Tyrell decision. While retroactivity was not explicitly raised in Moore, the Court, in fact, applied Tyrell retroactively and appellant's case should be decided no differently. Nevertheless, in its ssm letter, respondent posits that Tyrell announced a "new rule" because "it altered longstanding preservation rules for challenging plea allocutions on appeal" (resp. letter at 4). This argument is incorrect for a number of reasons. First of all, this Court has never held previously that, where no Boykin rights were given, a defendant must nevertheless file a post-allocution motion to preserve his contentions, particularly when it is not practical to do 3 Respondent's claim that Tyrell departed from People v. Nixon, 21 N.Y.2d 338 (1967) Crespo letter at 7-8) is misplaced because that case was decided prior to Boykin V. Alabama. 13 SO.4 Thus, this Court's holding in Tyrell -- that the defendant's claims were reviewable on direct appeal either because he had no practical ability to object to the plea allocution because the plea and sentence occurred during the same proceeding and because he could not have brought a C.P.L. §440.1O motion since the error in these cases was clear from the face of the trial record, or because it was a mode of proceeding error for which preservation was not required (22 N.Y.3d at 364) -- clearly did not overturn established Court of Appeals precedent. To the contrary, the Tyrell holding was based explicitly on precedent from this Court. As the Court explained, in People v. Lopez, 71 N.Y.2d 662, 666 (1988) this Court carved out a narrow exception to the preservation requirement regarding plea allocutions and then, subsequently, in People v. Louree, 8 N.y'3d 541,546 (2007) it concluded that a defendant could raise a Catu claim on direct appeal since he had no practical ability to object to a motion to withdraw the plea or vacate the judgment of conviction. Tyrell, 22 N.y'3d at 364. As the Court has stated: "Taken together, Lopez and Louree establish that where a defendant has no practical ability to object to 4 In Boykin v. Alabama itself, although the defendant did not object at the time of his plea, the Supreme Court concluded that the issue was properly presented. 395 U.S. at 239,241. 14 an error in a plea allocution which is clear from the face of the record, preservation is not required." People v. Tyrell, 22 N.Y.3d at 364, quoting People v. Peque, 22 N.Y.3d 168, 182-183 (2013). Indeed, in Tyrell, the Court specifically cited the "LopezILouree exception" as one reason why preservation was not required. See also People v. Turner, _ N.Y.3d -' 2014 WL 5368777 (no preservation required where defendant did not have "sufficient opportunity to move to withdraw her plea"); People v. McAlpin, 17 N.Y.3d 936, 938 (2011) (no preservation required where defendant lacked "ample opportunity" to object). Thus, Tyrell certainly did not establish a "new rule" regarding preservation. Furthermore, this conclusion is strongly buttressed by the fact that, prior to Tyrell, three different appellate courts -- the Appellate Division, Second Department; the Appellate Term, Second, Eleventh and Thirteenth Judicial Districts; and the Appellate Term, Ninth and Tenth Judicial Districts -- had already applied the BoykinlHarris/Fiumefreddo precedent and held that where the pleas in question were constitutionally defective because the records did not demonstrate that these pleas were knowing and voluntary, preservation was not required. See People v. Gibson, 54 A.D.3d 350 (2d Dept. 2008); People v. Borofsky, 34 Misc.3d 142 (App. Term, 9th and 10th 15 Jud. Dists. 2012); People v. Facey, 30 Misc.3d 138 (App. Term, 2d, 11th and 13th Jud. Dists. 2011); People v. Robles, 22 Misc.3d 140 (9th and 10th Jud. Dists. 2009). Certainly, it is difficult to understand how Tyrell could possibly be considered to have established a "new rule" regarding preservation when, prior to Tyrell, three courts did not believe that preservation was required. Respondent's other argument as to why Tyrell announced a "new rule" -- namely, because "it seems to require a more substantial allocution even in cases where defendant is not facing imprisonment or other significant punishment" (resp. letter at 4) -- is also wrong. Notably missing are any cases to support respondent's claim that, prior to Tyrell, courts were not required to give Boykin rights to defendants, such as appellant, who were convicted of misdemeanors (in appellant's case an A misdemeanor). The reason for this is that no such cases exist. 5 This is not surprising since misdemeanors are criminal convictions that "affect ordinary people and produce lifelong criminal records" and, thus, must "not become routinized or treated by anyone as insignificant or 5 Although respondent observes that Boykin v. Alabama involved an open guilty plea to charges carrying the possibility of a death sentence (resp. letter at 6-7), no cases have limited Boykin's holding to such narrow circumstances. 16 unimportant." People v. Alejandro, 70 N.Y.2d 133, 140 (1987) (Bellacosa, J., concurring). And, certainly, criminal convictions can have serious consequences. As Judge Rivera recently explained, the "collateral consequences that accompany a criminal conviction are far reaching and can include the loss of the right to vote; loss of public benefits, exclusion from public housing; deportation for non-citizens; exclusion from jury service; and loss or exclusion from public employment." People v. Perez, 23 N.Y.3d 89, 110 (2014) (dissenting opinion). Given this, a guilty plea resulting in a criminal conviction, including a misdemeanor, clearly requires that the defendant waive his Boykin rights to ensure that the plea was knowing, voluntary and intelligent. Thus, for all of the above reasons, Tyrell did not announce a new rule of law. B. Even if Tyrell did announce a new rule, since it was derived from federal constitutional law it should still apply retroactively If a new rule is announced, there exist two competing theories of law on retroactivity. People v. Mitchell, 80 N.Y.2d 519, 525 (1992). One is presented in Griffith v. Kentucky, 479 U.S. 314 (1987), where the United States Supreme Court held that a new federal constitutional rule is to be applied retroactively to all cases pending on direct review. Id. The competing theory, enunciated by the Court of Appeals and known as the 17 Pepper test, holds that courts must determine the retroactive effect of a new rule by evaluating three different factors. Id. at 525-526; People v. Pepper, 53 N.Y.2d 213, 220 (1981). New York State's Pepper test, rather than the federal Griffith rule, applies only "[i]fno Federal constitutional principles are involved," in which case "the question of retroactivity is one of State law." Mitchell, 80 N. Y.2d at 526. See also People v. Martello, 93 N.Y.2d 645,651 (1999) (Pepper test applies because the ruling in People v. Bialostok, 80 N.Y.2d 738 (1993) "emanates from our interpretation of the provisions of CPL article 700, and thus constitutes a New York State rule oflaw"); People v. Favor, 82 N.Y.2d at 262 (Pepper test applies because the principles of People v. Dokes, 79 N.Y.2d 656 (1992) are derived from a "State statutory right"); People v. Mitchell, 80 N.Y.2d at 526-527 (Pepper test applies because People v. Antommarchi, 80 N.Y.2d 247 (1992) involved "a question of State law" and "only [whether] a statutory violation [under C.P.L. 260.20] had occurred"). Tyrell, however, was based on federal constitutional principles, namely that a guilty plea cannot stand in the absence of an affirmative record that the defendant has waived his three federal constitutional Boykin rights. Thus, even if, assuming, arguendo, Tyrell did announce a new rule, since it 18 did not solely involve New York State law, the Griffith rule, rather than the Pepper test, should apply. Therefore, Tyrell should apply retroactively to all cases, including the present one, that are pending on direct appeal. C. Even under the Pepper test, Tyrell still applies retroactively Under the Pepper test, three factors are weighed to determine whether a new precedent operates retroactively. The first factor looks to the purpose of the new rule and its relationship to the fact-finding process; the second factor considers the extent that courts have relied on the prior practice; and the third factor considers the effect on the administration of justice of a retroactive application of the new standard. People v. Favor, 82 N.Y.2d at 262; People v. Mitchell, 80 N.Y.2d at 528. The second and third factors are, however, only given substantial weight "when the answer to the retroactivity question is not to be found in the purpose of the new rule itself." People v. Pepper, 53 N.Y.2d at 220. The Pepper test was used in People v. Favor, 82 N.Y.2d 254, in determining whether People v. Dokes, 79 N.Y.2d 656 -- which had held that a defendant had a right to be present during a pre-trial Sandoval hearing unless his presence was superfluous -- should apply retroactively. The Court in Favor held that each of the Pepper factors supported retroactivity. 19 Specifically, it found, under the first factor, that a Sandoval proceeding impacted the fact-finding process at trial; under the second factor that "there was no firmly established body of case law approving the defendant's exclusion from Sandoval hearings;" and, under the third factor, that, "[c]ontrary to the People's assertion, there is simply no indication in the parties' submissions that retroactive application of Dokes could lead to wholesale reversals." Id. at 265-266. Thus, the Court concluded that Dokes should apply retroactively. See also Policano v. Herbert, 7 N.Y.3d 588, 603- 604 (2006); People v. Martello, 93 N.Y.2d at 652; People v. Hill, 85 N.Y.2d 256,263 (1995); People v. Mitchell, 80 N.Y. 2d at 528-529. Here too, the Pepper test supports retroactivity. Regarding the first factor, the purpose of the rule is to cure "constitutional infirmity inherent in the former practices" (People v. Mitchell, 80 N.Y.2d at 528) by ensuring that defendants are informed about their important constitutional rights prior to pleading guilty so that the plea is knowing, intelligent and voluntary. Moreover, this 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 20 confront one's accusers, that he might otherwise use to establish the truth in a trial. The second factor -- the courts' reliance on the prior practice -- also supports retroactivity. First of all, it is not at all clear that, prior to Tyrell, most courts failed to inform defendants who pled guilty to misdemeanors about their Boykin rights. Indeed, the fact that since Tyrell has been decided there have been so few convictions reversed for the failure to give Boykin rights in four of the five boroughs in New York City and in the rest of New York State (post at 22) strongly suggests that most courts had, in fact, been properly informing defendants about their constitutional rights. Moreover, as discussed previously (ante at 15-16), even before Tyrell was decided, at least three different courts -- the Appellate Division: Second Department, the Appellate Term: Second, Eleventh and Thirteenth Judicial Districts, and the Appellate Term: Ninth and Tenth Judicial Districts -- had already concluded that, as a matter of law, the failure to give any Boykin rights to defendants who pled guilty was reversible error regardless of preservation. Thus, Tyrell did not radically alter prior practices. Finally, as to the third factor, Tyrell is clearly not having a significant effect on the administration of justice because since Tyrell was decided in 21 December 2013 there has not been a cascade of convictions reversed. Indeed, so far there appear to have been only about 29 reversals, all involving relatively minor offenses, for a failure to give Boykin rights, of which only about 5 of these have come from outside of Manhattan.6 And, since almost one year has passed since Tyrell was decided, many, if not most, of the cases that involved defendants who pled guilty, did not receive any Boykin rights, and had a direct appeal pending prior to the Tyrell decision, have already been decided. 6 See People v. Moore, _ N.Y.3d _, 2014 WL 5365323; People v. Munoz, 121 A.D.3d 577 (1st Dept. 2014); People v. Harris, 120 A.D.3d 611 (1st Dept. 2014); People v. Miller, 113 A.D.3d 573 (1st Dept. 2014); People v. Garcia, 45 Mise.3d 129 (App. Term, I't Dept. 2014); People v. Valcin, 45 Mise.3d 128 (App. Term, 1st Dept. 2014); People v. Scott, 45 Mise.3d 128 (App. Term, 1st Dept. 2014); People v. Serrano, 2014 WL 4958214 (App. Term, 2d Dept., 2d, lith and 13th Jud. Dists. 2014); People v. Kaplan, 44 Mise.3d 144 (App. Term, 1st Dept. 2014); People v. Bannister, 44 Mise.3d 143 (App. Term, 1st Dept. 2014); People v. Tyson, 44 Mise.3d 131 (App. Term, 1st Dept. 2014); People v. Gibson, 44 Mise.3d 131 (App. Term, 1st Dept. 2014); People v. Cantrell, 44 Mise.3d 131 (App. Term, 1st Dept. 2014); People v. Buelvas, 43 Mise.3d 142 (App. Term, 1st Dept. 2014); People v. Taylor, 43 Mise.3d 142 (App. Term, 1st Dept. 2014); People v. Luna, 43 Mise.3d 142 (App. Term, 1st Dept. 2014); People v. Potts, 43 Mise.3d 141 (App. Term, 1st Dept. 2014); People v. Green, 43 Mise.3d 141 (App. Term, 2d Dept., 9th and 10th Jud. Dists. 2014); People v. Samed, 43 Mise.3d 130 (App. Term, 1st Dept. 2014); People v. Alcantara, 43 Mise.3d 129 (App. Term, 1st Dept. 2014); People v. De La Cruz, 43 Mise.3d 130 (App. Term, 1st Dept. 2014); People v. Matthews, 43 Mise.3d 130 (App. Term, 1st Dept. 2014); People v. Oliver, 43 Mise.3d 130 (App. Term, 1st Dept. 2014); People v. Mendez, 43 Mise.3d 130 (App. Term, 1st Dept. 2014); People v. Domin, 42 Mise.3d 149 (App. Term, 2nd Dept., 9th and 10th Jud. Dists. 2014); People v. Nesbitt, 42 Mise.3d 143 (App. Term, 1st Dept. 2014); People v. Rodriguez, 42 Mise.3d 143 (App. Term, 1st Dept. 2014); People v. Gonzalez, 42 Mise.3d 135 (App. Term, 1st Dept. 2014); People v. Jonas, 42 Mise.3d 135 (App. Term, 1st Dept. 2014). 22 Over the next year or so there will undoubtedly be some additional convictions reversed. Altogether, however, 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 Crespo letter at 9-10). Finally, defendants whose direct appeals are no longer pending will not be able to benefit from Tyrell as they cannot file C.P.L. §440.1O motions since their Boykin claims are clear from the face of the trial record and, thus, were reviewable on direct appeal. Therefore, even if the Pepper test is used, Tyrell still applies retroactively. D. The present case is indistinguishable from Tyrell Finally, respondent's attempt in its ssm letter to re-litigate Tyrell by arguing that appellant's claim is unpreserved and by speculating that he might have received his Boykin rights although there was no affirmative showing of this on the record, should be rejected. The present case is indistinguishable from Tyrell and, accordingly, the same result should apply here as well. First of all, as in Tyrell, here too, since appellant pled guilty and was sentenced at the same proceeding he had no opportunity to move to 23 withdraw his guilty plea pursuant to C.P.L. §220.60(3) prior to sentencing. And, as in Tyrell, he too could not have moved to vacate his conviction under C.P.L. §440.10 since the facts concerning the issue were clear from the record. Thus, like Tyrell, appellant's Boykin issue was also "reviewable on direct appeal." 22 N.Y.3d at 363-364. In addition, as in Tyrell, appellant's guilty plea was not entered knowingly, intelligently and voluntarily since no one apprised him of the constitutional rights that he was waiving by pleading guilty. Here too appellant was neither advised of the rights he was waiving and there was no actual discussion between the court, defense counsel and appellant about these rights at the plea allocution. See People v. Tyrell, 22 N.Y.3d at 366. Nor is there any indication in the record that appellant spoke with his attorney regarding the constitutional consequences of taking a plea. Id. And, in fact, just as in Tyrell, here too appellant pled guilty at the first court appearance in this case, i.e., his arraignment. Id. Appellant's case is also indistinguishable from this Court's recent decision in People v. Moore, _ N.Y.3d _, 2014 WL 5365323. In Moore, as in both Tyrell and appellant's case, the defendant pled guilty at arraignment and there was no affIrmative showing in the record that he was 24 informed about his Boykin rights. Given this, the Manhattan District Attorney's Office conceded that "under Tyrell defendant's plea must be vacated," and this Court agreed and vacated the plea. Therefore, the Court should also hold that appellant's guilty plea was not knowing, intelligent and voluntary because the record as a whole does not contain an affirmative demonstration of the waiver of his fundamental constitutional rights. Moreover, respondent's suggestion that appellant's case IS distinguishable from Tyrell because he had pled guilty on previous occasions is incorrect. First of all, appellant might not have been given his Boykin rights when he pled previously and, even if those rights were given, there was certainly no reason to believe that he would remember them since he last pled guilty in 2000, nine years before he did so in this case. In any event, this argument was implicitly rejected in Tyrell since, at the time of Tyrell's second guilty plea, he too had several previous plea convictions. See Tyrell's Court of Appeals brief for the 10115/19 conviction, at 11, Ftn. 2.7 Finally, respondent's claims that a C.P.L. §440.10 should have been filed to establish non-record facts, namely whether appellant was aware of 7 Copies of this brief will be provided upon request. 25 his Boykin rights, and that his attorney had an obligation to alert the court that he had not advised appellant about his Boykin rights, have been squarely rejected by Tyrell. As the Court made clear, for a guilty plea to be valid, there must be an "affirmative showing on the record" that appellant waived these rights and "[p ]resuming waiver from a silent record is impermissible." 22 N.Y.3d at 365. In sum, since the present case is indistinguishable from Tyrell, the guilty plea must be vacated. Moreover, since appellant has completed his sentence and a minor charge is involved, this Court, instead of remanding for a trial, should dismiss the information in the interest of justice. See People v. Moore, _ N.Y.3d _, 2014 WL 5365323; People v. Tvrell, 22 N.Y.3d at 366; People v. Dreyden, 15 N.Y.3d 100, 104 (2010); People v. Flynn, 79 N.Y.2d 879 (1992); People v. Burrell, 53 N.Y.2d 849,851 (1981). 26 CONCLUSION FOR THE REASONS STATED ABOVE, THE JUDGMENT SHOULD BE REVERSED, THE GUlL TY PLEA V ACA TED, AND THE INFORMATION DISMISSED. PAUL WIENER Of Counsel November, 20 14 Respectfully submitted, ~ ~ W~~ ~ SEYMOUR W. JAMES, JR. Attorney for Defendant- Appellant 27 STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) PAUL WIENER, an attorney duly admitted to the practice of law in this State, does hereby affirm and show: That on November 20, 2014, the within Brief and Appendix was served upon Hon. Robert T. Johnson, District Attorney, Bronx County, 198 East 161st Street, Bronx, NY 10451, attn.: Orrie Levy, Esq., by depositing three true copies of each in the same in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York. Dated: New York, New York November 20, 2014 PAUL WIENER