The People, Respondent,v.Joseph Conceicao, Appellant.BriefN.Y.October 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, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT PAUL WIENER Of Counsel August, 2011 STEVEN BANKS Attorney for Defendant- Appellant THE LEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street - 5th Floor NewYork,N.Y. 10038 (212) 577-3267 pwiener@legal-aid.org TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................... ii PRELIMINARY STATEMENT ..................................................................... 1 ARGUMENT POINT CONTRARY TO RESPONDENT'S CLAIM, APPELLANT'S PLEA WAS NOT KNOWING AND VOLUNTARY SINCE HE WAS NEVER INFORMED ABOUT HIS BOYKIN RIGHTS AND HE MADE NO FACTUAL ALLOCUTION ................... 1 CONCLUSION ............................................................................................... 9 i TABLE OF AUTHORITIES CASES Boykin v. Alabama, 395 U.S. 238 (1969) ....................................................... 2 Hanson v. Phillips, 442 F.3d 789 (2d Cir. 2006) ........................................ 6, 7 People v. Aleman, 43 A.D.3d 756 (1st Dept. 2007) ....................................... 9 People v. Colon, 42 A.D.3d 411 (1st Dept. 2007) .......................................... 8 People v. Dowett, 20 Misc.3d 127(A) (App. Term, 1st Dept. 2008) ............. 7 People v. Diaz, 97 A.D.2d 851 (2d Dept. 1983) ............................................. 8 People v. Facey, 30 Misc.3d 138(A) (App. Term, 9th and 10th Jud. Dists.) ............................................................................................. 3, 5, 8, 9 People v. Fiumefreddo, 82 N.Y.2d 536 (1993) .............................................. 2 People v. Flynn, 79 N.Y.2d 879 (1992) .......................................................... 9 People v.Gillard, 111 A.D.2d 666 (1st Dept. 1985) ................................... 8, 9 People v. Harris, 61 N.Y.2d 9 (1983) ..................................................... 2,3,6 People v. Hastings, 32 Misc.3d 129(A) (App. Term, 9th and 10th Jud. Dists., 2011) ....................................................................................... 5,6,8 People v. Louree, 8 N.y'3d 541 (2007) ...................................................... 7,8 People v. Robles, 22 Misc.3d 140(A) (App. Term, 9th and 10th Jud. Dists., 2009) ........................................................................................... 6, 8 People v. Vargas, 61 N.Y.2d 9 (1983) ............................................................ 7 People v. Yu, 8 Misc.3d 128(A) (App. Term, 2nd, 11th and 13th Jud. Dists., 2005) ........................................................................................... 4, 5 ii STATUTES Criminal Procedure Law Section 220.60(3) ................................................... 7 111 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 PRELThflNARYSTATEMENT This brief is submitted in reply to respondent's brief, which was received by appellate counsel on July 21, 2011. The facts and procedural history of the case are discussed in appellant's main brief and will not be repeated here, except where necessary to respond to the People's contentions. ARGUMENT POINT CONTRARY TO RESPONDENT'S CLAIM, APPELLANT'S PLEA WAS NOT KNOWING AND VOLUNTARY SINCE HE WAS NEVER INFORMED ABOUT HIS BOYKIN RIGHTS AND HE MADE NO FACTUAL ALLOCUTION. In his main brief, appellant argued that the record did not establish that he entered his plea knowingly and voluntarily since the court failed to 1 explain any of the fundamental Boykin rights that appellant was waiving by pleading guilty and he did not make a factual allocution to the crime. Respondent now argues that, despite this, appellant's guilty plea should, nevertheless, be upheld because the plea was, in fact, knowingly and voluntarily entered and because it is not preserved for appellate review (respondent's brief at 5). Respondent is wrong. Although the record is completely devoid of any indication that appellant received any of the Boykin rights, respondent, in an effort to save the plea, argues that there should be a "presumption" that the Legal Aid Society attorney who represented appellant during the plea proceedings must have discussed these rights with him because ofthe "deserved reputation for excellence enjoyed by the Legal Aid Society" whose "attorneys are among the most well trained and competent members of the defense bar" (respondent's brief at 11-13). While respondent's praise of the Legal Aid Society is certainly appreciated, respondent's argument misses the point, which is that it is the court's obligation - - not an attorney's - - to explain to a defendant his Boykin rights. See Boykin v. Alabama, 395 U.S. 238, 243- 244 (1969); People v. Fiumefreddo, 82 N.Y.2d 536,543-544 (1993); People v. Harris, 61 N.Y.2d 9,16-17 (1983). 2 Moreover, as the Court of Appeals stated in People v. Harris, 6 N.Y.2d at 17, "Presuming waiver from a silent record is impermissible. The record must show that an accused . . . intelligently waived and understandingly rej ected [his constitutional rights]. Anything less is not a waiver." Here, of course, the record is completely devoid of any suggestion that appellant was informed about his constitutional rights prior to pleading guilty. Thus, as Harris makes clear, waiver cannot be "presumed" as respondent now argues. In addition, under the logic of respondent's argument, judges presiding over a large percentage of cases involving defendants who plead guilty - - i.e., all of those represented by the Legal Aid Society, as well as others deemed to have excellent counsel - - would no longer have to inform the defendants about their Boykin rights before accepting a guilty plea. This, however, would directly contravene the well-established legal principle that the defendant must be informed of these important rights by the court and would largely eviscerate the requirement that they be clearly and openly given to every defendant who pleads gUilty.! Respondent's argument is also undennined by People v. Facey, 30 Misc.3d 138 (A) (App. Tenn, 2nd, I lth and 13th Jud. Dists., 2011), in which the court reversed the judgment because the defendant had not been given his Boykin rights, a case in which, according to the records of the Legal Aid Society, the defendant was represented by Legal Aid during the plea proceedings. 3 Respondent also contends that appellant did not need to receive his Boykin rights because he had pled guilty on previous occasions (respondent's brief at 13-14). Once again, however, if this argument were accepted, it would mean that a large number of defendants who plead guilty -- i.e., those who had done so previously -- would not have to be informed of their constitutional rights which, again, would largely destroy the rule that these rights must be given. Moreover, the mere fact that appellant had pled guilty previously did not prove anything because there is no indication in the record that he was given his Boykin rights on those previous occasions. Finally, respondent's argument is particularly absurd as it applies to appellant since his last such conviction was in February 2000, almost 10 years before he pled guilty in the instant case. Thus, even if, assuming arguendo, appellant had been given his Boykin rights previously, he could not possibly be expected to remember them so many years later. Respondent even seems to be going so far as to suggest that Boykin rights need not be given in misdemeanor cases and in "busy arraignment parts" (respondent's brief at 14, 16-17), a position, which, yet again, would result in an enormous number of defendants being deprived of their fundamental constitutional rights. Indeed, not only is this not the law but it has been explicitly rejected. See People v. Yu, 8 Misc.3d 128(A) (App. 4 Term, 2d, 11th and 13th Jud. Dists. 2005) (while there is a value to moving low-level cases quickly, "[n]evertheless, the courts must insure that a defendant's constitutional rights are protected and the pleas are not taken without a defendant's clear understanding of the nature of the plea and its direct consequences"). In several recent cases that are indistinguishable from the present case, various Appellate Term courts have reversed judgments because no Boykin rights were given. In People v. Facey, supra, the court concluded "that the Criminal Court failed to conduct a proper plea allocution" as it "neither advised defendant of any of the constitutional rights he was waiving nor inquired whether he understood those rights." The court noted that, under Harris, a record that is silent will not overcome the presumption against waiver and, therefore, the court concluded that the record in Facey did not demonstrate that the plea was knowing and voluntary. Finally, the court held that, although the defendant had not objected to the plea, under the circumstances "this issue did not have to be raised in the Criminal Court in order to present a question of law for this Court" and "[i]n any event, we would reach the issue as a matter of discretion in the interest of justice in view of the glaring deficiency of the plea allocution." Similarly, in People v. Hastings, 32 Misc.3d 129(A) (App. Term, 9th and 10th Jud. Dists., 2011), 5 the Appellate Term also found that the plea court had failed to conduct a proper plea allocution because it "neither informed defendant of the constitutional rights he was waiving as a result of his guilty plea nor inquired whether defendant understood his rights." As in Facey, the court then noted that, under Harris, a silent record will not overcome the presumption. Finally, it stated that "[a]lthough defendant did not preserve the issue, we reach this contention by defendant on appeal as a matter of discretion in the interest of justice in view of the glaring deficiency of the plea allocution." See also People v. Robles, 22 Misc.3d 140(A) (App. Term, 9th and 10th Jud. Dists., 2009) (defendant's allocution, as set forth on record, fatally deficient as defendant was never informed of the rights he was waiving by pleading guilty). Furthermore, respondent's claim that Hanson v. Phillips, 442 F.3d 789 (2d Cir. 2006) is not relevant (respondent brief at 15) is incorrect. In Hanson, the court granted a writ of habeas corpus because there was nothing in the record that "affrrmatively disclosed" the defendant's awareness of his fundamental right to a trial and that he voluntarily chose to plead guilty, which was problematic since the plea could not be intelligent unless "at the very least, the defendant understands that he has the right to a trial to determine whether he is guilty, and that, by pleading guilty, he gives up that 6 right and consents to the entry of a guilty verdict." Id. at 799. The same deficiency existed in the present case as well. Likewise, respondent's argument that People v. Vargas, 61 N.Y.2d 9 (1983), in which the Court of Appeals vacated the plea where the record did not indicate that the defendant was informed that he was waiving any of his Boykin rights, is also irrelevant (respondent's brief at 17) is similarly unavailing. In Vargas, the Court, in reversing the judgment, noted that the record indicated that the "guilty plea had been obtained without the defendant having been advised of the rights he was waiving." Id. at 22. Here too, there was nothing in the record to indicate that appellant was given any of his Boykin rights? Finally, respondent's argument that appellant was required to preserve the court's error here, even though he was sentenced immediately after pleading guilty (respondent's brief at 5-6), is also incorrect. Criminal Procedure Law Section 220.60(3) states that a defendant may move to withdraw a plea "[a]t any time before the imposition of sentence" (emphasis added). Here, however, because appellant was sentenced immediately after pleading guilty, at the very same proceeding, he had no realistic opportunity to withdraw his plea prior to sentence. Moreover, in People v. Louree, 8 2 By contrast, People v. Dowett, 20 Misc.3d 127(A) (App. Te11TI, 1st Dept. 2008), a case cited by respondent (see respondent's brief at 10-11), does not even appear to involve the absence of Boykin rights, as in the instant case. 7 N.Y.3d 541,546 (2007), the Court of Appeals emphasized that preservation is not required because the defendant can hardly be expected to withdraw his plea where he has no knowledge of the ground on which a plea withdrawal motion could be made and it also noted that a 440 motion was not required because the omission at issue was clear from the face of the record. Thus, in People v. Facey, 30 Misc.3d 138(A) and People v. Robles, 22 Misc.3d 140(A), cases identical to appellant's case, the courts, citing Louree, concluded that preservation was not required. In any event, many courts have repeatedly reversed judgments in the interest of justice, even in the absence of preservation, where the lower court fails to give a defendant any Boykin rights. See,~, People v. Hastings, 32 Misc.3d 129 (A); People v. Facey, 30 Misc.3d 138(A); People v. Robles, 22 Misc.3d 140(A); People v. Aleman, 43 AD.3d 756, 757 (1st Dept. 2007); People v. Colon, 42 AD.3d 411,412 (1st Dept. 2007); People v. Diaz, 97 AD.2d 851 (2d Dept. 1983). In sum, the court improperly accepted the plea without sufficient evidence that appellant was aware that he was waiving numerous important constitutional rights by pleading gUilty. Making matters even worse in this case, it did so without any inquiry whatsoever into the underlying acts committed by the defendant that would establish the crime upon which the conviction was based. See People v. Gillard, 111 A.D.2d 666 (1st Dept. 8 1985). See also pages 9-12 of appellant's main brief for a fuller exposition of this argument. Thus, this Court should vacate the guilty plea and, since appellant has completed his sentence and only a minor offenses involved, it should dismiss the charge. See,.!:h&, People v. Flynn, 79 N.Y.2d 879, 882 (1992); People v. Facey, 30 Misc.3d 138 (A). CONCLUSION FOR THE ABOVE STATED REASONS AND FOR THE REASONS STATED IN APPELLANT'S MAIN BRIEF, THE JUDGMENT SHOULD BE VACATED AND THE INFORMATION DISMISSED. PAUL WIENER OfCounse1 August, 2011 Respectfully submitted, STEVEN BANKS Attorney for Defendant- Appellant 9 PRINTING SPECIFICATION STATEMENT The word count for this brief is 1,911, 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 in the text, and headings, and 12 points in the footnotes. The line spacing is two.