The People, Respondent,v.Joseph Conceicao, Appellant.BriefN.Y.Oct 20, 2015nm~. THE o :"al 11m . "l!!lI LEGAL Criminal Appeals Bureau 199 Water Street New York, NY 10038 ~:l1 AID ::i ~ I SOCIETY The Honorable Jonathan Lippman Chief Judge Court of Appeals Court of Appeals Hall Eagle Street Albany, New York 12207 Attn: Hon. Andrew W. Klein June 30,2014 Tel: 212-577-3688 www.legal-aid.org Blaine (Fin) V. Fogg President Seymour W. James, Jr. Allorne~in-Charge Criminal Practice Re: People v. Joseph Conceicao APL-2014-00122 Your Honor: This constitutes appellant's submission pursuant to Rule 500.11 of this Court's Rules of Practice in accordance with the Clerk's letter, dated June 4, 2014. In People v. Tyrell, 22 N.Y.3d 359 (2013), this Court recently held that because the defendant's claims were reviewable on direct appeal and the records were silent as to his waiver of his Boykin rights, his guilty pleas must be vacated. Because the present case is indistinguishable from Tyrell, appellant's plea must likewise be vacated and the information dismissed. The Facts 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 31, 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. Hon. Jonathan Lippman Chief Judge 2 MR. LEKAS (the prosecutor): Your Honor, on a plea to the docket, People recommend two days of social service. MR. TAUBER (the defense attorney): June 30, 2014 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. TAUBER: Thank you, Judge. (Plea and sentence minutes, p. 2). 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. 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 judgment of conviction (see People v. Lopez, 71 N.Y.2d 662, 665 ), 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 Hon. Jonathan Lippman Chief Judge 3 June 30, 2014 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 ; see People v. Jackson, 60 A.D.3d 576 , Iv denied 12 N.Y.3d 926 ). The Leave Application On March 2, 2012, Judge Ciparick denied appellant's application for leave to appeal to the Court of Appeals. 18 N.Y.3d 956. In letters dated October 12, 2012 and October 26, 2012, appellant moved for reconsideration of this leave denial on the ground that the Court of Appeals had subsequently granted leave in People v. Tyrell, 19 N.Y.3d 1105 (2012), and that appellant's case presented the same issue, namely the complete failure to adequately advise a criminal defendant of his Boykin rights at a plea and sentencing proceeding. On November 27, 2012, Judge Ciparick granted the motion for reconsideration and, upon reconsideration, denied the application for leave to appeal but granted appellant leave to renew within 30 days after the Court rendered a decision in Tyrell. 20 N.Y.3d 931. On December 12, 2013, this Court vacated Mr. Tyrell's two guilty pleas on the ground that there was nothing in the record to indicate that, when he pled guilty, he had been informed of and had waived his Boykin rights. On December 20, 2013, appellant renewed his leave application in light of the decision in Tyrell and, on May 21, 2014, Chief Judge Lippman granted leave to appeal. Argument The present case is indistinguishable from People v. Tyrell, 22 N.Y.3d 359 (2013). Just as in Tyrell, here too appellant's Boykin claims are reviewable on direct appeal since he had no opportunity to withdraw his guilty plea prior to sentencing and the facts concerning the issue were clear from the face of the record. Moreover, just as in Tyrell, here too the record did not demonstrate that appellant was apprised of the constitutional rights that he was waiving by pleading guilty. Accordingly, this Court should vacate the plea and dismiss the information. U.S. Const., Amend. XIV; N.Y. Const., Art. I, §6; People v. Tyrell, 22 N.Y.3d 359. Hon. Jonathan Lippman Chief Judge 4 June 30, 2014 Due process requires that a guilty plea be knowing, intelligent and voluntary. Boykin v. Alabama, 395 U.S. 239, 243 (1969); People v. Tyrell, 22 N.Y.3d at 36; People v. Lopez, 71 N.Y.2d 662 (1988); People v. Harris, 61 N.Y.2d 9, 17 (1983). Voluntariness should be determined by considering all of the relevant circumstances. Brady v. United States, 397 U.S. 742, 749 (1970). In Boykin v. Alabama, 395 U.S. at 242-243, the United States Supreme Court held that when a defendant opts to plead guilty he must voluntarily and intelligently waive several federal constitutional rights. Those 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. M., People v. Tyrell, 22 N.Y.3d at 365; People v. Harris, 61 N.Y.2d at 17. In People v. Tyrell, where the defendant argued that his two guilty pleas should be vacated because the records were silent as to his waiver of his Boykin rights, this Court, as a threshold matter, rejected the People's contention that the defendant's claims were unpreserved. 22 N.Y.3d at 363. Instead, it held that the defendant's cases either fell within the People v. Lopez, 71 N.Y.2d 662 (1988)/People v. Lauree, 8 N.Y.3d 541 (2007) exception -- which established 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 -- or that there was a mode of proceedings error for which preservation is not required and, thus, that either way defendant's claims were reviewable on direct appeal. People v. Tyrell, 22 N'y.3d at 363-364. Moreover, the Tyrell Court stressed that the defendant could not have taken the steps ordinarily required to preserve a challenge to the factual sufficiency of a plea allocation, namely by making either a motion to withdraw the plea under C.P.L. §220.60(3) or a motion to vacate the judgment of conviction under C.P.L. §440.10. 22 N.Y.3d at 363; People v. Lopez, 71 N.Y.2d at 665. Specifically, the Court noted that the defendant could not have brought a C.P.L. §220.60(3) plea withdrawal motion in either case "because the plea and sentence occurred during the same proceedings." 22 N.Y.3d at 364. Likewise, it noted that he could not have filed a C.P.L. §440.10 motion "because the error in these cases was 'clear from the face of the trial record.'" M., quoting People v. Stewart, 16 N.Y.3d 839, 840 (2011). Turning to the merits, the Court emphasized that, in to ensure that the guilty plea was knowing, voluntary and intelligent, there must be "an affirmative showing on the record" that the defendant waived his constitutional rights. Hon. Jonathan Lippman Chief Judge 5 June 30, 2014 People v. Tyrell, 22 N.Y.3d at 365. See also People v. Fiumefreddo, 92 N.Y.2d 536,543 (1993); People v. Harris, 61 N.Y.2d at 17; Boykin v. Alabama, 395 U.S. at 242. As it further 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.' People v. Tyrell, 22 N.Y.3d at 365-366. See also People v. Harris, 61 N.Y.2d at 17; Boykin v. Alabama, 395 U.S. at 242. Applying this, the Court in Tyrell concluded that "the records do not affirmatively demonstrate defendant's understanding or waiver of his constitutional rights." 22 N.Y.3d at 366. In each of the defendant's cases the Court found that there was "a complete absence of discussion of any of the pertinent constitutional rights; none are addressed by the Court, defense counsel or defendant." Id. In addition, it noted that there was no "indication that defendant spoke with his attorney regarding the constitutional consequences of taking a plea" and that "in fact, these cases were both resolved during arraignment within days of arrest." .!Q. Thus, since the records were inadequate, the Court vacated the pleas. Id. The present case is indistinguishable from Tyrell. 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 withdraw his guilty plea pursuant to C.P.L. §220.60(3) prior to sentencing. And, likewise, as in Tyrell, he 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, just as in Tyrell, appellant's Boykin issue was also "reviewable on direct appeal." 22 N.Y.3d at 363. In addition, as in Tyrell, appellant's guilty plea was not entered knowingly, intelligently or 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 . .!Q. Indeed, just as in Tyrell, appellant pled guilty at the first court Hon. Jonathan Lippman Chief Judge 6 June 30, 2014 appearance in this case, i.e., his arraignment. kL. Therefore, this Court should similarly 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 argument -- made in a letter, dated January 3, 2013, to Chief Judge Lippman, in opposition to appellant's renewed leave application -- that appellant's case is distinguishable from Tyrell because he had pled guilty on previous occasions is wrong. 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 10/15/19 conviction, at 11, Ftn. 2.1 Finally, respondent's additional claims, also made in the January 3, 2014 letter to Chief Judge Lippman, that a C.P.L. §440.10 should have been filed to establish non-record facts, namely whether appellant was aware of 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 charge in the interest of justice. See People v. Tyrell, 22 N.Y.3d at 366; People v. Flynn, 79 N.Y.2d 879 (1992); People v. Burrell, 53 N.Y.2d 849, 851 (1981). Copies of this brief will be provided upon request. Hon. Jonathan Lippman Chief Judge cc: Hon. Robert T Johnson District Attorney Bronx, County 198 E. 161st Street Bronx, New York 10451 Attn : Orrie A. Levy, Esq . Appeals Bureau 7 June 30, 2014 <: ve~ tr~you~s , \_ ... -c: ~ ~\ '-<.-. PAUL WIENER Associate Appellate Counsel 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 July 1, 2014, the within Brief was served upon Hon. Robert T. Johnson, District Attorney, Bronx County, 198 East 161st Street, Bronx, NY 10451, attn.: Orrie Levy, Esq., by depositing true copies 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 July 1, 2014 c ~ ~ n ( ~ ) " ~ "-.tL/ ~'-"'prA-U-L-W-I-E-N-E-R-----"