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. REPLY BRIEF FOR DEFENDANT-APPELLANT PAUL WIENER Of Counsel February, 2015 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 .......................................................................... ii ARGl.JIVffiNT POINT I CONTRARY TO REPSONDENT'S CLAIM, PEOPLE V. TYRELL, 22 N.Y.3D 359 (2013) SHOULD APPLY RETROACTIVELY BECAUSE IT DID NOT CREATE A NEW RULE OF LAW. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, §6 .......................................................... 2 POINT II THIS CASE IS INDISTINGUISHABLE FROM PEOPLE V. TYRELL, 22 N.Y.3D 359 (2013) ....................... 13 CONCLUSION ............................................................................................. 14 1 TABLE OF AUTHORITIES CASES Boykin v. Alabama, 395 U.S. 238 (1969) .............................................. Passim Chaidez v. United States, 568 U.S. _, 133 S. Ct. 1103 (2013) ..................... 4 Griffith v. Kentucky, 479 U.S. 314 (1987) ................................................. 8, 9 Padilla v. Kentucky, 599 U.S. 356 (2012) ...................................................... 4 People v. Barnes, 46 Misc.3d 137 (App. Term, 2d Dept., 2d, 11th and 13th Jud. Dists. 2015) ............................................................................... 11 People v. Borofsky, 34 Misc.3d 142 (App. Term, 9th and 10th Jud. Dists. 2012) ............................................................................................... '5 People v. Dreyden, 15 N.y'3d 100, 104 (1981) ........................................... 13 People v. Facey, 30 Misc.3d 138 (App. Term, 2d, 11th and 13th Jud. Dists. 2011) ................................................................................................ 5 People v. Favor, 82 N.Y.2d 254 (1993) .......................................................... 8 People v. Fiumefreddo, 82 N.Y.2d 536 (1993) ...................................... 2,5, 8 People v. Flynn, _N.Y.3d _,2014 WL 6390321 ..................................... 13 People v. Goldstein, 79 N.Y.2d 879 (1992) ............................................ 11, 12 People v. Harris, 61 N.Y.2d 9 (1983) ................................................. 2,5,6,8 People v. Lopez, 71 N.Y.2d 662 (1988) ..................................................... 3,4 People v. Louree, 8 N.Y.3d 541 (2007) ...................................................... 3,4 People v. Martello, 93 N.Y.2d 645 (1999) ..................................................... 8 People v. Misiego, 46 Misc.3d 132 (App. Term, 1st Dept. 2014) ............... 11 People v. Mitchell, 80 N.Y.2d 519 (1992) ...................................................... 8 People v. Moore, 24 N.y'3d 1030 (2014) .......................................... 3, 12, 13 11 People v. Murray, 46 Mise.3d 136 (App. Term, 1st Dept. 2014) ................. 11 People v. Pepper, 53 N.Y.2d 213 (1981) ................................................ 2, 8, 9 People v. Pegue, 22 N.Y.3d 168 (2013) ......................................................... 4 Peoplev. Perez, 116 A.D.3d 511 (1stDept. 2014), Iv. Granted,24 N.Y.3d 1004 (2014) ................................................................................... 7 People v. Riekenbaeker, 114 A.D.2d 982 (App. Term, 1st Dept. 2014) ........ 6 People v. Robles, 22 Mise.3d 140 ................................................................... 5 People v. Tyrell, 22 N.Y.3d 359 (2013) ................................................ Passim People v. Vargas, 61 N.Y.2d 9 (1983) ............................................................ 9 United States v. Diaz-Ramirez, 646 F.3d 653 (9th Cir. 2011) ........................ 9 OTHER AUTHORITIES www.attomeys.eomleriminal-defense/even-misdemeanor-eharges- ean-have-serious-eonsequenees ................................................................. 7 111 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOSEPH CONCEICAO, Defendant-Appellant. ---------------------------------------------------------------------)( PRELThflNARYSTATEMENT This brief is submitted in reply to respondent's brief. Appellant's primary arguments have been discussed in his main brief and will not be repeated here. 1 ARGUMENT POINT I CONTRARY TO RESPONDENT'S CLAIM, PEOPLE V. TYRELL, 22 N.Y.3D 359 (2013), SHOULD APPLY RETROACTIVELY BECAUSE IT DID NOT CREATE A NEW RULE OF LAW. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, §6. In his main brief, appellant argued that People v. Tvrell, 22 N.Y.3d 359 (2013) did not announce a new rule oflaw and, thus, the decision should apply retroactively. Specifically, he argued that, 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; and that it did not create a new rule of preservation for Boykin claims or a new rule requiring courts to give Boykin rights to defendants who pled guilty to misdemeanors but were not facing jail time. He also argued that, even assuming, arguendo, that Tyrell did announce a new rule, since the decision was derived from federal constitutional principles rather than solely from state law principles, Tyrell still applies retroactively to all cases pending on direct review but that, even under New York's Pepper test, it should still 2 apply retroactively. Finally, he noted that, recently, in People v. Moore, 24 N.Y.3d 1030 (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. In its answer, respondent contends that Tyrell created a "new rule" because it was "novel" and departed from the "historical body of case law" (resp. br. at 13, 18). Respondent also asserts that Tyrell did not involve federal constitutional principles and that the Pepper factors weigh in favor of prospective application. Respondent, who makes no mention of Moore, is incorrect. Respondent argues that, to the extent that this Court held in Tyrell that the defendant had a "practical inability to withdraw a plea as the basis for not requiring preservation," this determination was an "innovation" (resp. br. at 11-12). In particular, respondent states that the Court's holding in Tyrell was a "remarkable, unexpected and broad departure" from People v. Lopez, 71 N.Y.2d 662 (1998) and People v. Louree, 8 N.Y.3d 531 (2007) because it focused on "temporal considerations" rather than the "substance of a defendant's claim" (resp. br. at 11, 13) 3 As the Court explained in Tyrell, under the LopezILouree exception the question is whether the defendant had an "actual or practical unavailability of either a motion to withdraw the plea or a motion to vacate the judgment of conviction." People v. Tyrell, 22 N.Y.2d at 364, quoting People v. Louree, 8 N.Y.3d at 546. Moreover, in Tyrell the Court made clear that this was a well-established concept, quoting as follows from its decision in People v. Peque, 22 N.Y.3d 168, 182-183 (2013): "Taken together, Lopez and Louree establish that 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" (people v. Tyrell, 22 N.Y.3d at 364) -- language that respondent ignores. Merely applying this principle in Tyrell, the Court concluded that it was not practical for the defendant to make a plea withdrawal motion "because the plea and sentence occurred during the same proceeding." Id. 1 Respondent's comparison of Tyrell to Padilla v. Kentucky, 599 U.S. 356 (2010) (resp. br. at 14) is clearly misplaced. As this Court explained in People v. Baret, 23 N.Y.3d 777, 799 (2014): "The majority [in Chaidez v. United States, 568 U.S. _, 133 S.Ct. 1103 (2013)] determined that Padilla was a new rule and not just an application of the two-prong Strickland test for ineffective assistance of counsel to a new set of facts .... Padilla contradicted and supplanted Ford's holding as to whether defense attorneys were obligated to advise their noncitizen clients about the immigration consequences of a guilty plea." By contrast, in Tyrell this Court merely applied its well-established concept of "practical" considerations regarding preservation. 4 Moreover, respondent's assertion that "[n]o court had previously found that the failure to inform a defendant of his Boykin rights during an allocution was a mode of proceedings error" (resp. br. at 11) is simply not correct. In fact, 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 BoykinlHarrislFiumefreddo 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) Gudgment reversed "on the law"); People v. Borofsky, 34 Misc.3d 142 (App. Term, 9th and 10th Jud. Dists. 2012) ("preservation was not required"); People v. Facey, 30 Misc.3d 138 (App. Term, 2d, 11th and 13th Jud. Dists. 2011) ("this issue did not have to be raised in the Criminal Court in order to present a question of law"); People v. Robles, 22 Misc.3d 140 (App. Term, 9th and 10th Jud. Dists. 2009) ("this issue did not have to be raised in the City Court in order to present a question of law for this court"). 5 Given this, it is difficult to understand how Tyrell could possibly be considered to have established a "new rule" regarding preservation. Respondent's argument that Tyrell announced a "new rule" for misdemeanor plea allocutions is also incorrect. Respondent's claim is based largely on certain language in Harris stating that there is no requirement of a "uniform mandatory catechism" for pleading and that the court may consider certain "factors," including the "seriousness of the crime," in exercising its discretion. 61 N.Y.2d at 16. Neither Harris nor any other case, however, provides that no catechism whatsoever is required. Indeed, immediately preceding the language relied upon by respondent, the Court in Harris explained that it was not holding that a trial court must specifically enumerate "all" ofthe rights to which a defendant is entitled. rd. Moreover, in People v. Vargas, 61 N.Y.2d 9 (1983), one of the companion cases in Harris, where the defendant was given no Boykin rights at all, the Court found that the plea was invalid. rd. at 22.2 Thus, respondent's claim that Harris permits the trial court to consider "non-record factors" (resp. br. at 2 People v. Rickenbacker, 114 A.D.2d 982 (2d Dept. 1985), another case relied by respondent, is a "partial-Boykin" case, unlike appellant's case, in which no Boykin rights were given. 6 21), even when there is no indication in the record that the defendant received any Boykin rights, is without basis. Furthermore, respondent's contention that Boykin rights need only be given in cases, such as Boykin itself, in which serious felonies have been committed is also incorrect. Significantly, respondent cites no cases to support its claim that, prior to Tyrell, courts were not required to give Boykin rights to defendants who were convicted of misdemeanors (in appellant's case an A misdemeanor), which is not surprising since no such cases exist. 3 Indeed, such a rule would be preposterous because misdemeanor convictions, including those carrying no jail time, can have serious collateral consequences, including ineligibility for public housing, housing vouchers or other housing benefits; loss of the right to own a firearm; trouble getting ajob; suspension of a driver's license; loss or denial of a professional license; and deportation. www.attomeys.comlcriminal-defense/even-misdemeanor-charges-can-have- serious-consequences. 3 In support of its argument respondent cites People v. Perez, 116 A.D.3d 511 (1st Dept. 2014), in which the defendant was convicted of a violation, not a misdemeanor, as in appellant's case. Permission for leave to appeal in Perez has been granted. 24 N.Y.3d 1004 (2014). 7 Thus, Tyrell did not announce a new rule of law. Rather, it merely reinforced the "well-settled proposition" of Boykin, Harris and Fiumefreddo 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. Respondent further contends that, if a new rule was, in fact, announced in Tyrell then New York State's Pepper test, rather than the federal test -- which holds that a new federal constitutional rule is to be applied retroactively to all cases pending on direct review (see Griffith v. Kentuckv, 479 U.S. 314 (1987)) -- should apply. The Pepper test, however, applies only "[i]fno Federal constitutional principles are involved," in which case "the question ofretroactivity is one of State law." People v. Mitchell, 80 N.Y.2d 519, 526 (1992). See also People v. Martello, 93 N.Y.2d 645, 651 (1999); People v. Favor, 82 N.Y.2d 254,262 (1993). 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, rights which federal 8 courts have made clear apply to misdemeanors. See,~, United States v. Diaz-Ramirez, 646 F.3d 653, 655, 658 (9th Cir. 2011); Fox v. Kelso, 911 F.2d 563, 570, 571 (11th Cir. 1990). Thus, even assuming, arguendo, that Tyrell did announce a new rule, since it did not solely involve New York State law, the Griffith rule, rather than the Pepper test, should apply. As to the Pepper test, regarding the first factor, respondent concedes that Tyrell encourages truth-finding but complains that it does so only in the "abstract sense" and that this is not the "primary purpose" of the rule (resp. br. at 26). The rule's purpose, however, is extremely important, namely to ensure that defendants are informed about their constitutional rights prior to pleading guilty so that their plea is knowing, intelligent and voluntary. Moreover, this is directly related 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. As to the test's second factor, the courts' reliance on prior practices, respondent asserts that it was "well established," prior to Tyrell. that preservation was not required, and that it can be "inferred" that lower courts 9 "routinely" did not give Boykin rights (resp. br. at 26-27). As discussed previously (ante at 5), however, 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. And, if it was indeed as "routine" as respondent claims for most courts not to have informed defendants who pled guilty to misdemeanors about their Boykin rights, then it is difficult to understand why, since Tyrell was decided, there have been almost no convictions reversed for the failure to give Boykin rights from four of the five boroughs in New York City and in the rest of New York State. Thus, Tyrell did not, in fact, radically alter prior practices. As to the third factor, the administration of justice, respondent tries to unduly scare this Court by making the wild assertion that Tyrell "has the potential to unsettle thousands of convictions" (resp. br. at 31).4 The numbers, however, tell a completely different story. To date, since Tyrell 4 Respondent, however, undermines its own argument by also listing various reasons why only a limited number of defendants who were, in fact, not given Boykin rights were likely to appeal. See resp. br. at 28-29. 10 was decided in December 2013, there appear to have been only about 32 reversals, all involving relatively minor offenses, for a failure to give Boykin rights, of which only about six have come from outside of Manhattan.s Indeed, the fact that in the nearly three months since appellant filed his main brief there appear to have only been three new reversals strongly suggests that these cases are already beginning to dry up. Moreover, respondent's assertion that there could still be "hundreds or thousands" of cases in the direct appellate pipeline because the Appellate Divisions might suddenly decide to grant extensions for older cases in which Notices of Appeal were filed but no briefs submitted (resp. br. at 33-34) is both sheer speculation and a gross overstatement. The reality is that there is no reason to believe that the Appellate Divisions will permit the appeal of a large number of old, unperfected no-Boykin cases, and certainly not "hundreds or thousands" of them. Similarly, respondent's claim that there could be "significant post- conviction litigation in the Boykin context" (resp. br. at 34) as a result of People v. Syyille, 15 N.y'3d 391(2010) and People v. Grubstein, _N.Y.3d 5 Sinee appellant filed his main brief, the only new reversals appear to be the following: People v. Barnes, 46 Mise.3d 137 (App. Term, 2d Dept., 2d, 11 th and 13th Jud. Dists. 2015); People v. Murray. 46 Mise.3d 136 (App. Term, 1st Dept. 2014); People v. Misiego, 46 Mise.3d 132 (App. Term, 1st Dept. 2014). 11 _, 2014 W.L. 6390321, is also without basis. Grubstein is distinguishable because, unlike here, in that case there was a complete deprivation of counsel. And, Syyille is of no significance because, as a practical matter, it is unlikely that there will be many, if any, cases in which a defendant, who pled guilty without being told about his Boykin rights, will be able to establish that he then asked his attorney to a file a Notice of Appeal and that the attorney failed to do so. Finally, it is telling that respondent completely ignores People v. Moore, 24 N.Y.3d 1030 (2014). In Moore, this Court reversed a conviction on the ground that the defendant was not given any Boykin rights in a case that 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. Accordingly, for all of the above reasons, as well as those in appellant's main brief, Tyrell should apply retroactively. 12 POINT II THIS CASE IS INDISTINGUISHABLE FROM PEOPLE V. TYRELL, 22 N.Y.3D 359 (2013). Respondent's attempt to re-litigate Tyrell should be rejected since Tyrell is identical to the present case. Although respondent argues that this Court should find that preservation was required, the issue of preservation was explicitly litigated and decided in Tyrell. Thus, like Tyrell, appellant's Boykin issue was also "reviewable on direct appeal." 22 N.Y.3d at 363-364. Moreover, respondent's argument that a "holistic" approach should be taken to determine whether appellant was aware of his Boykin rights (respondent's brief at 47) was also rejected in Tyrell, which resoundingly reaffirmed that a plea is not knowing, intelligent and voluntary if the record as a whole does not affirmatively demonstrate a waiver of the defendant's fundamental constitutional rights. Id. at 365-366. Finally, 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, as it has done many times previously. See People v. Moore, 24 N.y'3d 1030; People v. Tyrell, 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). 13 CONCLUSION FOR THE REASONS STATED ABOVE AND IN APPELLANT'S MAIN BRIEF, THE JUDGMENT SHOULD BE REVERSED, THE GUILTY PLEA V ACA TED, AND THE INFORMATION DISMISSED. PAUL WIENER Of Counsel February, 2015 Respectfully submitted, SEYMOUR W. JAMES, JR. Attorney for Defendant- Appellant 14