The People, Respondent,v.Federico Perez, Appellant.BriefN.Y.October 20, 2015 To be argued by HAROLD V. FERGUSON, JR. (15 Minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against - FEDERICO PEREZ, Defendant-Appellant BRIEF FOR DEFENDANT-APPELLANT SEYMOUR W. JAMES, JR. Attorney for Defendant- Appellant THE LEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street, 5th Floor. New York, N.Y. 10038 (212) 577-3548 HAROLD V. FERGUSON, JR. Of Counsel December, 2014 ii TABLE OF CONTENTS PRELIMINARY STATEMENT ............................................................................. 1 QUESTION PRESENTED ..................................................................................... 2 SUMMARY OF ARGUMENT ................................................................................ 2 STATEMENT OF FACTS ....................................................................................... 3 ARGUMENT THE APPELLATE DIVISION ERRED WHEN IT HELD THAT APPELLANT’S PLEA PROCEEDING DEMONSTRATED THAT APPELLANT HAD UNDERSTANDINGLY WAIVED HIS CONSTITUTIONAL RIGHTS NOTWITHSTANDING THE FACT THAT THERE WAS NO DISCUSSION OF APPELLANT’S BOYKIN RIGHTS AT THIS PROCEEDING. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, §6; PEOPLE V. TYRELL, 22 N.Y.3D 359 (2013). ........................................................................ 6 CONCLUSION ..................................................................................................... 18 iii TABLE OF AUTHORITIES FEDERAL CASES Bordenkircher v. Hayes, 435 U.S.357 (1978) ........................................................... 7 Boykin v. Alabama, 395 U.S. 238 (1969).................................................................. 5 Boykin v. Alabama, 395 U.S. 239 (1969)........................................................ Passim Brady v. United States, 397 U.S. 742 (1970) ............................................................ 7 Hanson v. Phillips, 442 F.3d 789 (2d Cir. 2006) ................................................. 2, 6 Parker v. Raley, 506 U.S. 20 (1992) ........................................................................... 7 United States v. Dominguez Benitez, 542 U.S. 74 (2004) ..................................... 7 STATE CASES People v. Afilal, 45 Misc. 3d 142 (A) (App. Term: 1st Dept. 2014) ................... 14 People v. Burwell, 53 N.Y.2d 849 (1981) ............................................................... 17 People v. Farinaro, 36 N.Y.2d 283 (1975) ............................................................. 10 People v. Fiumefreddo, 82 N.Y.2d 536 (1993) ....................................................... 8 People v. Flynn, 79 N.Y.2d 879 (1992) .................................................................. 17 People v. Garcia, 93 N.Y.2d 42 (1999) ................................................................... 10 People v. Harris, 61 N.Y.2d 9 (1983) ............................................................. Passim People v. Huan Bui, 44 Misc. 3d 134 (A) (App. Term: 1st Dept. 2014) ............ 14 People v. Keizer, 100 N.Y.2d 114 (2003) .............................................................. 14 People v. Letterio, 16 N.Y.2d 307 (1965) .................................................... 5, 10, 12 People v. Lopez, 71 N.Y.2d 662 (1988) ........................................................... 2, 6, 8 iv People v. Louree, 8 N.Y.3d 541 (2007) ................................................................ 8-9 People v. Munoz, 121 A.D.3d 577 (1st Dept. 2014) ............................................ 12 People v. Perez, 116 A.D.3d 511 (1st Dept. 2014) ........................................... 1, 10 People v. Ross, 67 N.Y.2d 321 (1986) .................................................................... 10 People v. Tyrell, 22 N.Y.3d 359 (2014) .......................................................... Passim People v. Tyrell, 22 N.Y.3d 366 [2013] .......................................................... Passim People v. White, 26 Misc. 3d 144 (A) (App. Term: 2nd, 11th & 13th Jud. Dist. 2010) ................................................................................................. 14 People v. White, 56 N.Y.2d 110 (1982) ................................................................. 10 CONSTITUTIONAL PROVISIONS N.Y. Const., Art. I, §6 ............................................................................................ 2, 6 U.S. Const., Amend. XIV ...................................................................................... 2, 6 STATUTES C.P.L. §220.60(3) ...................................................................................................... 8-9 C.P.L. §440.10 .......................................................................................................... 8-9 C.P.L. §470.05(2) ......................................................................................................... 2 MISCELLANEOUS Fields and Emshwiller, “As Arrest Records Rose, Americans Find Consequences Can Last,” Wall Street Journal (8/18/14) .............................. 11 1 COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : FEDERICO PEREZ, : Defendant-Appellant. : -------------------------------------------------------------------------X PRELIMINARY STATEMENT By permission of the Honorable Robert S. Smith, Associate Judge of the Court of Appeals, dated October 30, 2014, appellant appeals from an order of the Appellate Division: First Department dated April 10, 2014, affirming a judgment of the Supreme Court, Bronx County, rendered on December 12, 2011, convicting appellant, after a guilty plea, of disorderly conduct and sentencing him to a $100 fine (Gross, J., at plea and sentence). See People v. Perez, 116 A.D.3d 511 (1st Dept. 2014). On December 16, 2014, this Court granted appellant leave to appeal as a poor person and assigned Seymour W. James, Jr. of The Legal Aid Society as counsel on the appeal. No stay of execution of judgment has been sought. Appellant has completed his sentence. 2 The issue raised on this appeal, whether appellant’s guilty plea was knowingly, intelligently and voluntarily entered, presents a question of law within the meaning of C.P.L. §470.05(2). Based upon this Court’s decision in People v. Tyrell, 22 N.Y.3d 359 (2014), this issue should be considered preserved for this court’s review. QUESTION PRESENTED Whether the Appellate Division erred when it held that appellant’s plea proceeding demonstrated that appellant had understandingly waived his constitutional rights notwithstanding the fact that there was no discussion of appellant’s Boykin rights at this proceeding. U.S. Const., Amend. XIV; N.Y. Const., Art. I, §6; People v. Tyrell, 22 N.Y.3d 359 (2013). SUMMARY OF ARGUMENT The instant case is controlled by this Court’s opinion in People v. Tyrell, 22 N.Y.3d 359 (2013). Due process requires that a guilty plea be knowing, intelligent and voluntary. Boykin v. Alabama, 395 U.S. 239 (1969); People v. Tyrell, 22 N.Y.3d at 365-366; People v. Lopez, 71 N.Y.2d 662 (1988); People v. Harris, 61 N.Y.2d 9 (1983). In the instant case, just as in Tyrell, the silent record does not establish that appellant’s guilty plea was knowing, intelligent and voluntary. Although appellant was represented by counsel at the plea proceeding, the record does not establish what, if any advice, counsel provided 3 appellant before he entered a guilty plea on his behalf. Furthermore, the record does not demonstrate that appellant understood or was even aware of the important constitutional rights he was waiving by virtue of his guilty plea. There was absolutely no discussion about these rights between the court and appellant at the plea proceeding. Consequently, the Appellate Division: First Department erred when it held that appellant’s guilty plea was knowing, intelligent and voluntary. STATEMENT OF FACTS Under Bronx County docket number 2011BX021365, the then 39 year old appellant Federico Perez was charged with failure to disclose origin of recording, criminal possession of marijuana in the fifth degree and unlawful possession of marijuana in connection with an incident that occurred on April 13, 2011 in the Bronx (1-2).1 On December 12, 2011, appellant appeared before the Honorable Michael A. Gross (10). At that proceeding, the court stated, “This matter was adjourned for a possible disposition.” (11).2 The prosecutor confirmed the court’s statement (11). Counsel then stated, “we have a disposition today. Mr. 1 Parenthetical references are to pages of appellant’s appendix. The instant case is only appellant’s second experience in the criminal justice system. In 1992, the now 42 year old appellant was charged with illegal use of telecommunications service without paying (5). There is no reported disposition of that case (6). 2 The previous court appearance was held on November 9, 2011. 4 Perez has authorized me to enter a plea of guilty to the added charge of disorderly conduct with the understanding that he will [be] sentenced to pay [a] $100.00 fine” (11). The prosecutor confirmed that this was the plea offer (11). The court then asked, “Waiving formal allocution and prosecution by information?” (11). Counsel replied, “Yes, judge.” (11). The court stated “ Mr. Perez your attorney has indicated that you would like now to plead guilty to the added charge of disorderly conduct. The plea is in satisfaction of charges pending against you” (11). The court then asked appellant “Is that, in fact, what you want to do, Mr. Perez?” (11). Appellant replied “Yes.” (11). The court asked appellant if he “had enough time to speak to [defense counsel] about this plea?”; appellant replied, “Yes.” (11). The court asked the People if it had “any objection to the waiver of allocution requested by [defense counsel];” the prosecutor replied, “No, your Honor.” (11-12). The court then accepted the plea to disorderly conduct (12). The court did not ask appellant any questions concerning his constitutional rights before accepting appellant’s plea (10-12). Nor did appellant allocute to the facts of the case (10-12). The court then imposed the “negotiated” sentence of a $100 fine (12). If appellant did not pay this fine “along with the surcharge and fee mandated by law” in a timely fashion, the court advised appellant that he would be subject to a ten day jail term (12). 5 In the Appellate Division: First Department appellant challenged the voluntariness of his guilty plea.3 The Appellate Division affirmed appellant’s conviction holding that “we find that the record establishes defendant’s understanding and waiver of his constitutional rights (see People v. Tyrell, 22 N.Y.3d 366 [2013]), even though there was no discussion on the record of defendant’s rights under Boykin v. Alabama, 395 U.S. 238 (1969).” Citing this Court’s decision in People v. Letterio, 16 N.Y.2d 307, 312 (1965), the Appellate Division stated, “There are, historically, certain minor transgressions which admit of summary disposition.” (13).4 Continuing, the Appellate Division stated: Defendant pleaded guilty to a violation, with no consequences other than a $100 fine, which he subsequently paid. In defendant’s presence, defense counsel acknowledged that defendant agreed to waive “formal allocution.” In response to the court’s questioning, defendant personally confirmed that he wanted to plead guilty, and that he made this decision after having enough time to confer with his counsel. Moreover, the record shows that defendant had ample opportunity to review his options in consultation with counsel, including a one-month adjournment to consider the plea offer. Appellant then sought leave to further appeal his case to this Court. After a leave hearing, on October 30, 2014, the Honorable Robert S. Smith 3 Appellant filed his appellate brief in that court prior to this Court’s decision in People v. Tyrell. 4 The People did not cite Letterio in their brief in the Appellate Division. 6 granted appellant’s leave application (15). The instant appeal derives therefrom. ARGUMENT THE APPELLATE DIVISION ERRED WHEN IT HELD THAT APPELLANT’S PLEA PROCEEDING DEMONSTRATED THAT APPELLANT HAD UNDERSTANDINGLY WAIVED HIS CONSTITUTIONAL RIGHTS NOTWITHSTANDING THE FACT THAT THERE WAS NO DISCUSSION OF APPELLANT’S BOYKIN RIGHTS AT THIS PROCEEDING. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, §6; PEOPLE V. TYRELL, 22 N.Y.3D 359 (2013). The instant case is controlled by this Court’s decision in People v. Tyrell, 22 N.Y.3d 359 (2013). Notwithstanding the clarity of that decision, the Appellate Division: First Department misapplied governing precedent in Tyrell and determined that appellant’s plea passed constitutional muster. When this Court properly applies Tyrell, it must reverse the Appellate Division’s decision, reverse appellant’s conviction, vacate his guilty plea and dismiss the complaint against him. 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 365-366; People v. Lopez, 71 N.Y.2d 662 (1988); People v. Harris, 7 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). A guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one’s accusers, and the privilege against self- incrimination. Parker v. Raley, 506 U.S. 20 (1992); Boykin, 395 U.S. at 243, People v. Tyrell, 22 N.Y.3d at 361, 365. When the record of a conviction obtained by guilty plea contains no evidence that a defendant knows of the rights he was putatively waiving, the conviction must be reversed, regardless of whether the defendant would have pled guilty had the record been adequate. United States v. Dominguez Benitez, 542 U.S. 74, 84, note 10 (2004); People v. Tyrell, 22 N.Y.3d at 366. The trial court must produce a record affirmatively showing that a defendant’s guilty plea was knowing, intelligent and voluntary. See Bordenkircher v. Hayes, 435 U.S.357, 362 (1978); Boykin v. Alabama, 395 U.S. at 242; People v. Tyrell, 22 N.Y.3d at 365-366; Hanson v. Phillips, 442 F.3d 789 (2d Cir. 2006). Although this Court has declined to require that trial judges ritually recite all the constitutional rights waived upon a guilty plea, it has recognized that judges have a “vital responsibility ‘to make sure [that the accused] had full understanding of what the plea connotes and of its consequences.’” People v. Harris, 61 N.Y.2d at 18; People v. Tyrell, 22 N.Y.3d at 365-366. In order to constitute a knowing, voluntary and intelligent plea, 8 there must be “an affirmative showing on the record” that a defendant waived his constitutional rights. People v. Tyrell, 22 N.Y.3d at 365; People v. Fiumefreddo, 82 N.Y.2d 536, 543 (1993); People v. Harris, 61 N.Y.2d at 17; Boykin v. Alabama, 395 U.S. at 242. A record that is silent will not overcome the presumption against waiver. People v. Tyrell, 22 N.Y.3d at 365; People v. Harris, 61 N.Y.2d at 17; Hanson v. Phillips, 442 F.3d at 800. As this Court stated in Tyrell: 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; People v. Harris, 61 N.Y.2d at 17; Boykin v. Alabama, 395 U.S. at 242. Here, as a threshold matter, appellant’s plea sufficiency issue is properly before this Court. In People v. Tyrell, this Court held that appellant’s situation either fell within the parameters of its precedents regarding the applicability of a preservation requirement in People v. Lopez, 71 N.Y.2d at 666 and People v. Louree, 8 N.Y.3d 541 (2007), or was a mode of proceedings error. People v. Tyrell, 22 N.Y.3d at 364. In Lopez, this Court held that generally “in order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea under C.P.L. §220.60(3) or a motion 9 to vacate the judgment under C.P.L. §440.10. 71 N.Y.2d at 666. Here, just as in Tyrell, neither option was available to appellant. First, appellant pled guilty and was sentenced at the same proceeding. Hence, appellant had no opportunity to move to withdraw his guilty plea prior to sentencing. See People v. Tyrell, 22 N.Y.3d at 364 (acknowledging the actual or practical unavailability of a plea withdrawal motion pursuant to C.P.L. §220.60(3) where the plea and sentence occurred during the same proceeding). Nor could appellant properly have moved to vacate his conviction under C.P.L. §440.10 since the facts concerning the issue were clear from the face of the record. Id., People v. Louree, 8 N.Y.3d at 545. As a result, appellant’s Boykin issue is “clearly reviewable on direct appeal.” People v. Tyrell, 22 N.Y.3d at 364. Turning to the merits of this case, this Court should then determine that the Appellate Division erred when it held that appellant understandingly waived his constitutional rights when he pled guilty. Here, at his plea and sentence, no one apprised appellant of the constitutional rights he was waiving by pleading guilty. Just like the defendant in Tyrell, appellant was neither advised of the rights he was waiving, nor was there any actual discussion between the court and appellant about these rights at the plea allocution. See People v. Tyrell, 22 N.Y.3d at 366; People v. Vargas, 61 N.Y.2d at 22. Nor is there any indication that appellant spoke with his attorney regarding the constitutional consequences of taking a guilty plea. People v. Tyrell, 22 N.Y.3d at 366. 10 Although the Appellate Division recognized that there was “no discussion on the record of [appellant’s] rights under Boykin v. Alabama,” that court held that there are “certain minor transgressions which admit of summary disposition.” 116 A.D.3d at 511. In support of this position, the Appellate Division relied upon this Court’s decision in People v. Letterio, 16 N.Y.2d 307, 312 (1965). The Appellate Division’s reliance on Letterio, however, is misplaced. First, People v. Letterio was decided prior to Boykin v. Alabama. Therefore, the United States Supreme Court’s decision in Boykin on Federal constitutional grounds seriously questions the continued validity of Letterio. Second, this Court has never extended the holding of Letterio beyond minor traffic offenses. Moreover, as this Court has made abundantly clear, the import of Letterio is strictly limited to minor traffic offenses. See People v. Garcia, 93 N.Y.2d 42 (1999); People v. Ross, 67 N.Y.2d 321 (1986); People v. White, 56 N.Y.2d 110 (1982); People v. Farinaro, 36 N.Y.2d 283 (1975); People v. Phinney, 22 N.Y.2d 288 (1968). In Garcia, this Court held that “where imprisonment threatens, constitutional guarantees as to counsel must apply.” People v. Garcia, 93 N.Y.2d at 46. Here, appellant was charged with misdemeanor offenses and violations.5 Thus, appellant was facing the potential 5 The disorderly conduction violation was added to the original complaint against appellant. 11 threat of imprisonment in this case. Indeed, even when appellant pled guilty, he was still facing the potential threat of incarceration since if he did not pay the imposed fine, surcharge and fee in a timely fashion, he was subject to a ten day jail term. Furthermore, the Appellate Division’s contention that appellant “pleaded guilty to a violation with no consequences other than a $100 fine” is categorically incorrect. First, as previously mentioned, appellant faced incarceration if he did not timely pay his fine. Second, as a result of this case, there were far more consequences than the aforementioned $100 fine. As the Wall Street Journal noted this past summer, any criminal record, including one for a violation, can have potentially adverse consequences on both employment and educational opportunities. See Fields and Emshwiller, “As Arrest Records Rose, Americans Find Consequences Can Last,” Wall Street Journal (8/18/14). On a more tangible level, a violation, such as the one in this case, leads to a two year period of ineligibility for residing in NYCHA public housing. See NYCHA Department of Housing Applications Manual at www.nycourts.gov.6 This ineligibility extends to the immediate families of the person with the violation. Id. Moreover, a violation can lead to termination of NYCHA tenancy for “non-desirability” Id. 6 A copy of Exhibit F (Standards of Admissions) of the NYCHA’s Applications and Tenancy Administration Department Manual is contained on page 16 in Appellant’s Appendix. 12 Thus, the instant case did not involve a “minor transgression” with limited consequences. To the contrary, this case exposed appellant to potential incarceration. Moreover, the resolution of this case carried far more serious consequences than the mere payment of a $100 fine. As a result, the Appellate Division misapplied this Court’s decision in Letterio to the instant case. Hence, contrary to the Appellate Division’s decision, the instant case did not “admit of summary disposition.” 7 Accordingly, the Appellate Division erred when it applied Letterio to the instant case. Therefore, contrary to the Appellate Division’s decision, People v. Tyrell governs the instant case. Here, just as in Tyrell, there was not even an allusion to the right to go to trial or any other trial rights at the plea proceeding. The record is utterly deficient as to any affirmative showing of the necessary understanding on appellant’s part about the constitutional rights he was waiving by pleading guilty. Like appellant, Tyrell was represented at his plea by an attorney. While the “affirmative disclosure” requirement may be met if the record demonstrates that the defendant consulted with his attorney about the consequences of a 7 Any suggestion that the Appellate Division’s decision in this case stood for the proposition that Tyrell did not apply to violation cases was belied by that Court’s subsequent decision in People v. Munoz, 121 A.D.3d 577 (1st Dept. 2014). In Munoz, another disorderly conduct case, the Appellate Division: First Department reversed the defendant’s conviction on Tyrell grounds and dismissed the complaint against him. Therefore, the Appellate Division’s decision in the instant case can only be seen as limited to the particular facts of this case. 13 guilty plea, in neither Tyrell, nor the instant case, did the record so demonstrate. People v. Tyrell, 22 N.Y.3d at 365-366. Here, just like the defendant in Tyrell, there is no indication that appellant had any idea from any conversation with counsel as to what he was relinquishing by taking a plea. Id. Although the Appellate Division relied upon the fact that appellant “confirmed that he wanted to plead guilty” and had “made this decision after having enough time to confer with his counsel,” the trial court utterly failed to make the requisite record concerning what, if anything, appellant and counsel had discussed before he pleaded guilty. Therefore, just as in Tyrell, the record is silent as to whether appellant had any discussion with counsel concerning the consequences of his guilty plea. People v. Tyrell, 22 N.Y.3d at 365-366. Certainly, there is nothing in the record to demonstrate that appellant had any idea from any conversation with counsel as to what he was relinquishing by pleading guilty. Id. Likewise, the Appellate Division’s reliance on the one month adjournment for appellant to consider the plea offer as evidence that he understood the constitutional consequences of his guilty plea is equally misguided. Although the Appellate Division contended that appellant “had ample opportunity to review his options in consultation with counsel” during this adjournment, the trial court completely failed to make any record concerning what, if anything, actually transpired during this time period. 14 Indeed, the Appellate Division’s contention is based solely on speculation; the record is silent as to any discussion that appellant may have had with counsel during this time period. Indeed, the record does not establish if appellant ever even spoke to his attorney during this period. As this Court held in Tyrell, “Presuming waiver from a silent record is impermissible.” Id. at 365. Thus, the record does not show that appellant “intelligently and understandingly rejected his constitutional rights.” Id at 366. Therefore, the Appellate Division failed to properly apply Tyrell to this aspect of its decision. Finally, the Appellate Division relied upon counsel’s purported waiver of “formal allocution” in its decision affirming appellant’s conviction. That reliance is also misplaced. First, since the error involved here is of a constitutional dimension, calling into question the voluntariness of the underlying guilty plea, a statement addressed to defense counsel that does not specifically pertain to appellant’s fundamental trial rights, is insufficient to be a valid waiver of those rights. Next, it should be understood that “allocution” is not a legal term defined in the Penal Law or elsewhere in the New York State statutes. Nor does case law address this term. See e.g. People v. Keizer, 100 N.Y.2d 114, 118 (2003).8 Thus, the court’s request that defense counsel “waive 8 The Appellate Terms have drawn a distinction between the waiver of formal allocution and the waiver of a defendant’s Boykin rights. See People v. White, 26 Misc. 3d 144 (A) (App. Term: 2nd, 11th & 13th Jud. Dist. 2010); People v. Afilal, 45 Misc. 3d 142 (A) (App. Term: 1st Dept. 2014); People v. Huan Bui, 44 Misc. 3d 134 (A) (App. Term: 1st 15 formal allocution” cannot be seen as a relinquishment of specific constitutional rights, as the request has no generally understood meaning. Moreover, as a matter of practice, “formal allocution” refers not to a recitation of a defendant’s legal rights, but rather the factual allocution in which he admits to the elements of the offense, which indeed appellant was not asked to do here. It does not, however, refer to the advisement of the Boykin rights. Indeed it could not, and certainly should not. As Boykin and Tyrell make plain, a defendant cannot be permitted to plead guilty unless he is informed about the important constitutional rights he is waiving by doing so. Allowing a defendant’s attorney to waive the reading of those rights at a guilty plea cannot possibly be what was encompassed in the phrase “waiving formal allocution,” nor should it be allowed to be so understood. Furthermore, even if the advisement of appellant regarding his Boykin rights was meant by that phrase, such a waiver could not be a knowing and voluntary waiver of the reading of the rights being waived by the plea, and surely did not constitute a waiver of those rights themselves. Appellant did not perform this “waiver” nor did he assent to it. At best, counsel did so, but in a very perfunctory manner. There is nothing in the record to indicate that appellant, a neophyte in the criminal justice system, knew what “waiving formal Dept. 2014). Thus, implicitly, the Appellate Terms have determined that waiver of formal allocution refers to the waiver of factual allocution to the crime not to the waiver of a defendant’s Boykin rights. 16 allocution” meant, let alone what rights he would putatively be waiving if he waived that allocution. To hold that such a perfunctory waiver by counsel of formal allocution, followed by a perfunctory guilty plea, constitutes an adequate waiver of the Boykin rights themselves, would turn Tyrell on its head. It would leave us with exactly the situation in Tyrell – a defendant pleading guilty and being sentenced all at once, as quickly as possible, with no knowledge whatsoever of what his rights were and that he was giving up those constitutionally protected rights by entering his plea. It also leaves us without the affirmative showing that defendant personally understood and waived his Boykin rights as required by Boykin and Tyrell. People v. Tyrell, 22 N.Y.3d at 366. Therefore, counsel’s waiver of “formal allocution” does not render appellant’s guilty plea knowing, intelligent and voluntary. In this case, the trial court did not advise appellant of any of the direct consequences of his guilty plea - - the waiver of his right to trial, his right to confront the witnesses against him and the right against compulsory self- incrimination. Moreover, there is nothing in the record that demonstrates that appellant understood his rights before his guilty pleas were entered. Therefore, just as this Court held in Tyrell, this Court should now hold that appellant’s guilty pleas were not knowing, intelligent and voluntary because the record as a whole does not contain an affirmative demonstration of appellant’s waiver of his fundamental constitutional rights. See People v. Tyrell, 22 N.Y.3d at 366. 17 As a result, this Court must now reverse the Appellate Division’s decision, reverse appellant’s conviction and vacate his guilty plea. Id. In sum, the court improperly accepted appellant’s guilty plea to disorderly conduct without sufficient evidence that appellant was aware of any of the basic elements that customarily render a guilty plea knowing, voluntary, and constitutional. In remedying the defective proceedings, since appellant has completed his sentence and a minor offense is involved, this Court should vacate the guilty plea and, instead of remanding for a trial, this Court should dismiss the charges in the interest of justice. Courts have not hesitated to dismiss charges in the interest of justice in appellate cases such as this one, where the proceedings were flawed, the defendant has completed his sentence, and a minor offense was involved. People v. Tyrell, 22 N.Y.3d at 366, People v. Flynn, 79 N.Y.2d 879 (1992); People v. Burwell, 53 N.Y.2d 849, 851 (1981). 18 CONCLUSION FOR THE ABOVE-STATED REASONS, THIS COURT SHOULD REVERSE THE APPELLATE DIVISION’S DECISION, REVERSE THE JUDGMENT OF CONVICTION, VACATE APPELLANT’S GUILTY PLEA AND DISMISS THE COMPLAINT AGAINST HIM. Respectfully submitted, SEYMOUR W. JAMES, JR. Attorney for Defendant- Appellant HAROLD V. FERGUSON, JR. Of Counsel December, 2014 STATE OF NEW YORK COURT OF APPEALS -------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : CERTIFICATION FEDERICO PEREZ, : Defendant-Appellant. : -------------------------------------------------------------------------X I, HAROLD V. FERGUSON, JR., an attorney duly admitted to practice in the State of New York, do hereby certify, pursuant to CPLR 2105 that the herein Appellant’s Appendix, containing the order granting leave, the Appellate Division opinion, and the plea transcript, has been compared by me with the originals on file in the Offices of the Clerk of the Supreme Court, Bronx County, or with the copies of the same in the office of appellate counsel, and that said copy is a true and complete copy thereof. Dated: New York, New York December 16, 2014 ___________________________ HAROLD V. FERGUSON, JR. STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) HAROLD V. FERGUSON, JR. an attorney duly admitted to practice law in the courts of this State, do hereby affirms under the penalty of perjury that the following statements are true: That on December 16, 2014, I served three copies of brief and appendix upon Hon. Robert T. Johnson, District Attorney, Bronx County, attorney for People, at 215 East 161st Street, Bronx, New York 10451, the address designated by him for that purpose by depositing a true copy of the same in postpaid, properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Post Office Department within the State of New York. Dated: New York, New York December 16, 2014 ______________________________ HAROLD V. FERGUSON, JR.