The People, Respondent,v.Joseph Conceicao, Appellant.BriefN.Y.Oct 20, 2015To be argued by PAUL WIENER NEW YORK SUPREME COURT APPELLATE TERM - FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOSEPH CONCEICAO, Bronx County Docket No. 2009BX082306 Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT PAUL WIENER Of Counsel February, 2011 STEVEN BANKS 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 STATErvIENTPURSUANT TO RULE 5531 ................................................ 1 STATErvIENT PURSUANT TO RULE 640.3(c) .......................................... 2 PRELIMINARY ST ATErvIENT ..................................................................... 2 QUESTION PRESENTED ............................................................................. 3 INTRODUCTION ........................................................................................... 3 STATErvIENT OF FACTS ............................................................................. 4 The Guilty Plea and Sentence ............................................................... 4 ARGUrvIENT POINT THE RECORD WAS INSUFFICIENT TO SHOW THAT APPELLANT'S PLEA WAS KNOWING AND VOLUNTARY SINCE HE WAS NEVER INFORrvIED ABOUT HIS BOYKIN RIGHTS AND HE MADE NO FACTUAL ALLOCUTION. U.S. CONST., ArvIEND. XIV; N.Y. CONST., ART. I, §6 ................................................................................... 5 Boykin Rights ............................................................................. 5 Factual Allocution ...................................................................... 9 CONCLUSION ............................................................................................. 13 I TABLE OF AUTHORITIES FEDERAL CASES Boykin v. Alabama, 395 U.S. 238 (1969) ....................................................... 5-6, 8-9 Henderson v. Morgan, 426 U.S. 637 (1976) .............................................................. 9 STATE CASES People v. Aleman, 43 A.D.3d 756 (1st Dept. 2007) ............................................ 7, 12 People v. Burwell, 53 N.Y.2d 849 (1981) .............................................................. .12 People v. Colon, 42 A.D.2d 411 (1st Dept. 2007) ............................................... 7, 12 People v. Demonde, 111 A.D.2d 867 (2d Dept. 1985) ............................................ 11 People v. Diaz, 97 A.D.2d 851 (2d Dept. 1983) ............................................. 7,8, 12 People v. Flynn, 79 N.Y.2d 879 (1992) ................................................................... 12 People v. Gibson, 54 A.D.3d 350 (2d Dept. 2008) ....................................... 7, 12, 13 People v. Gillard, 111 A.D.2d 666 (1st Dept. 1985) ............................................... 10 People v. Harris, 61 N.Y.2d 9 (1983) .................................................................... 6, 9 People v. Lopez, 71 N.Y.2d 662 (1988) .................................................................. 10 People v. Makas, 273 A.D.2d 510 (3d Dept. 2000) ................................................. 10 People v. Moore, 71 N.Y.2d 1002 (1988) .................................................................. 9 People v. Nixon, 21 N.Y.2d 338 (1967) .................................................................... 6 People v. Smith, 2002 N.Y. Slip Op. 40288 (App. Term, 9th and 10th Dist. 2002) ............................................................................................................. 8 11 iii SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: FIRST DEPARTMENT ---------------------------------------------------------------------)C THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOSEPH CONCEICAO, Defendant-Appellant. ---------------------------------------------------------------------)C STATEMENT PURSUANT TO RULE 5531 1. The docket number in the court below was 2009B)c082306. 2. The full names of the original parties were the People of the State of New York against Joseph Conceicao. 3. This action was commenced in Criminal Court, Bronx County. 4. This action was commenced by the filing of an information. 5. This appeal is from a judgment convicting appellant, after a guilty plea, of criminal possession of a controlled substance in the seventh degree. 6. This is an appeal from a judgment of conviction rendered December 31,2009 (Collins, J., at plea and sentence). 1 7. Appellant has been granted permission to appeal as a poor person on the original record. The appendix method is not being used. STATEMENT PURSUANT TO RULE 640.3(c) Upon information and belief, appellant is currently at liberty. PRELThflNARYSTATEMENT This is an appeal from a judgment of the Criminal Court, of the City of New York, Bronx County, rendered 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 conditional discharge and two days of social service (Collins, J., at plea and sentence). Timely notice of appeal was filed and this Court, on June 7, 2010, granted appellant leave to appeal as a poor person on the original record and typewritten briefs and assigned Steven Banks as counsel on appeal. No application for a stay of execution of judgment has been made and, upon information and belief, appellant is currently at liberty. 2 QUESTION PRESENTED Whether the record was insufficient to show that appellant's plea was knowing and voluntary since he was never informed about any of his Boykin rights and he made no factual allocution. U.S. Const., Amend. XIV; N.Y. Const., Art. I, §6. INTRODUCTION An information charged appellant under Docket Number 2009BX082306 with criminal possession of a controlled substance in the seventh degree for allegedly possessing a pipe containing crack/cocaine residue. Appellant pled guilty to the crime. During the plea allocution, the court did not tell appellant about any of the Boykin rights that he was waiving by pleading guilty and there is nothing in the record to suggest that appellant ever discussed these rights with his attorney. Appellant also did not make a factual allocution to the crime. The court, nevertheless, accepted the plea. 3 STATEMENT OF FACTS The Guilty Plea and Sentence On December 31, 2009, appellant appeared before the court 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. 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. (Plea and sentence minutes, p. 2). There was no further colloquy involving either the plea or the sentence. 4 ARGUMENT POINT THE RECORD WAS INSUFFICIENT TO SHOW THAT APPELLANT'S PLEA WAS KNOWING AND VOLUNTARY SINCE HE WAS NEVER INFORMED ABOUT ANY OF HIS BOYKIN RIGHTS AND HE MADE NO FACTUAL ALLOCUTION. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, §6. The record in this case does not establish that appellant entered his guilty plea knowingly and voluntarily. The court failed to explain any of the fundamental Boykin rights that appellant was waiving by pleading guilty and there is nothing in the record to suggest that he ever discussed any of this with his attorney. Moreover, appellant did not make a factual allocution to the crime. Accordingly, his plea should be vacated and, since this case involved only a minor crime and he has fully served his sentence, the charge should be dismissed. U.S. Const., Amend. XIV; N.Y. Const., Art. I, §6. Boykin Rights Because a guilty plea involves the waiver of several important constitutional rights, the record must affIrmatively show that the defendant pled guilty knowingly and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242-243 (1969). These rights, known as Boykin rights, include 1) the privilege against compulsory self-incrimination 2) the right to a jury trial and 5 3) the right to confront one's accusers. Id.; People v. Harris, 61 N.Y.2d 9, 17 (1983). The Boykin showing does not oblige the court to recite "a uniform mandatory catechism" of rights waived before accepting the plea. People v. Nixon, 21 N.Y.2d 338, 353 (1967). But neither will a "silent record" overcome the presumption against waiver by a defendant of constitutionally guaranteed protections. People v. Harris, 61 N.Y.2d at 17. ("Presuming waiver from a silent record is impermissible. The record must show ... that an accused intelligently waived and understandingly rejected [his constitutional rights]. Anything less is not a waiver"). The Second Circuit reaffirmed these principles in Hanson v. Phillips, 442 F.3d 789 (2d Cir. 2006). In that case, the defendant pled guilty and, during the plea allocution, the defendant admitted committing the offense for which he was being charged. Nevertheless, the court found "the record deficient in establishing both the defendant's understanding of the immensely important procedural step he was taking and that he was acting voluntarily." Id. at 799. The court pointed out that nothing in the record "affirmatively disclosed" his awareness of his fundamental right to a trial and that he voluntarily chose to plead guilty. Id. It explained that the plea could not be intelligent unless "at the very least, the defendant understands 6 that he has the right to a trial to determine whether he is guilty, and that, by pleading guilty, he gives up that right and consents to the entry of a guilty verdict, upon which he may be sentenced." Id. Moreover, it ruled that evidence of the defendant's criminal history, which included a prior guilty plea, did not establish affirmative evidence that appellant knowingly, voluntarily, and intelligently, entered his guilty plea. Id. at 800. New York state courts have repeatedly vacated guilty pleas under similar circumstances, even when the claim is unpreserved. See M., People v. Gibson, 54 A.D.3d 350 (2d Dept. 2008) (plea vacated where "the court failed to apprise the defendant that he was giving up any rights upon entering the plea, such as the right to jury trial, the right to confront his accusers, and the privilege against self-incrimination"); People v. Aleman, 43 A.D.3d 756, 757 (lst Dept. 2007) (although defendant never moved to withdraw his guilty plea, plea vacated where the court failed to inform defendant of any of the rights he was waiving by his plea); People v. Colon, 42 A.D.3d 411, 412 (lst Dept. 2007) (although defendant never moved to withdraw his plea, Appellate Division vacated plea in the interest of justice "since the plea allocution was so woefully deficient" as the court never informed defendant about his Boykin rights); People v. Diaz, 97 A.D.2d 851 7 (2d Dept. 1983) (plea vacatur in the interest of justice where "the court failed to apprise defendant that by pleading guilty he was waiving his privilege against self incrimination and his right of confrontation"); People v. Smith, 2002 N.Y. Slip Op. 40288 (App. Term, 9th and 10th Dist. 2002) (plea conviction reversed on the law and in the interest of justice where there was "no showing of a knowing and intelligent waiver by defendant of his constitutional rights"). Here too, appellant's plea should be vacated as the trial court did not inform appellant about any of the Boykin rights that he was waiving by pleading guilty. In fact, there was not even an allusion to the right to go to trial or any other trial rights. The record is utterly deficient as to any affirmative showing of the necessary understanding on appellant's part - the court never so much as uttered the word "trial." Thus, the facts here are even more compelling than in Hanson, 442 F.3d at 792, where the court did, albeit not carefully, explain to the defendant that her alternative to taking a plea was to go to trial. Moreover, there is absolutely no indication that appellant consulted with defense counsel about the plea, let alone discussed with counsel the rights that he was relinquishing by pleading gUilty. 8 Finally, each of the cases in People v. Harris 61 N.Y.2d 9 in which the plea was found to be constitutionally adequate is easily distinguishable from the instant case. In each of those five cases, the trial court had infonned the defendant of at least one of his Boykin rights. Id. at 20-21. In each case, the defendant was told that he would be waiving his right to a jury trial and, in most of the cases, was also infonned of either his right against self- incrimination or his confrontation right as well. Id. By contrast, in Vargas, the only one of the Harris cases where the defendant was not infonned of any of his Boykin rights, the Court of Appeals vacated the plea since there was no affinnative showing that it was knowing, intelligent and voluntary. Id. Here too, the record does not indicate that appellant was infonned that he was waiving any of his Boykin rights. Factual Allocution A guilty plea is constitutionally flawed if the defendant has "an incomplete understanding of the charge" against him. Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976). All of the circumstances surrounding the plea must be considered to detennine whether the defendant understood the nature of the charge. People v. Moore, 71 N.Y.2d 1002, 1005 (1988). 9 Merely showing that the defendant did not expressly admit a particular element of the crime in the factual allocution is not sufficient, by itself, to raise a constitutional claim. Id. However, where the defendant's recitation ofthe facts underlying the crime pleaded to clearly cast significant doubt upon his guilt or otherwise calls into question the voluntariness of the plea, the trial court has a duty to inquire further to ensure that the defendant's guilty plea is knowing and voluntary. People v. Lopez, 71 N.Y.2d 662, 666 (1988). The failure to do so is reversible error, albeit challenges to the factual adequacy of the plea allocution must generally be preserved by a post-allocution motion. Id.; People v. Makas, 273 A.D.2d 510, 511-512 (3d Dept. 2000). Moreover, a plea may not be accepted without any inquiry whatsoever into the underlying facts committed by the defendant that would establish the crime upon which the conviction is based. People v. Gillard, 111 A.D.2d 666 (1st Dept. 1985). Thus, for example, in Gillard, where examination of the minutes of the plea revealed a complete absence in the allocution of any admission of conduct by the defendant that would constitute the crime to which he was pleading, the Appellate Division held that the plea was invalid. Id. 10 Here too, appellant's plea was accepted without any factual allocution at all by appellant. Thus, there was nothing in the record to confirm that appellant had, in fact, really committed criminal possession of a controlled substance in the seventh degree, the crime to which he pled guilty, or, indeed, any other crime. In fact, the only word that appellant said during the entire plea colloquy -- after being asked by the court how he was pleading -- was "Guilty," with no elaboration whatsoever. Finally, appellant's situation here, where no one recited the factual underpinnings of the case, can easily be distinguished from those cases where the factual allocution was found adequate because the defendant did not dispute statements made by the prosecutor concerning the case. See People v. Davis, 71 N.Y.2d 1002, 1006 (1988) (factual allocution found adequate even though defendant did not admit using the requisite force to commit robbery because he failed to refute the prosecutor's statements that he "used knives" and "stole money"); People v. Demonde, 111 A.D.2d 867, 868 (2d Dept. 1985) (plea adequate where defendant heard a "complete recitation of the prosecution's evidence against him" and did not contest it). Because the silent record itself calls into question whether appellant actually 11 did anything that constituted so much as one element of the crime of which he was convicted, his plea cannot stand. * * * In sum, the court improperly accepted a guilty plea to criminal possession of a controlled substance in the seventh degree without sufficient evidence that appellant was aware that he was waiving numerous important constitutional rights by pleading guilty and without a factual allocution. Moreover, the general preservation rule requiring a defendant to move to withdraw his plea prior to sentencing should not apply here since appellant was sentenced in the same proceeding immediately after pleading guilty and, thus, he did not have the opportunity to move to vacate his plea. Alternatively, the plea should be vacated in the interest of justice. See,~, People v. Aleman, 43 A.D.3d at 757; People v. Colon, 42 A.D.3d at 412; People v. Diaz, 97 A.D.2d 851. Finally, in remedying the error, this Court should vacate the guilty plea and, since appellant has completed his sentence and only a minor offense is involved, instead of remanding for a trial, it should dismiss the charge. See People v. Flynn, 79 N.Y.2d 879, 882 (1992); People v. Burwell, 53 N.Y.2d 849, 851 (1981); People v. Gibson, 54 A.D.3d 12 at 351. Accordingly, the judgment should be reversed and the information dismissed. CONCLUSION FOR THE ABOVE-STATED REASONS, THE JUDGMENT SHOULD BE VACATED AND THE INFORMATION DISMISSED. PAUL WIENER Of Counsel February 2011 Respectfully submitted, STEVEN BANKS Attorney for Defendant- Appellant 13 PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 2,322, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word. The brief is printed in Times New Roman, a serifed, proportionally spaced typeface. The type size is 14 points. 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