The People, Respondent,v.Federico Perez, Appellant.

Brief

N.Y.October 20, 2015

APL-2014-00273 To be argued by: ERIC C. WASHER (15 minutes requested) Supreme Court, Bronx County, Docket No. 2011BX021365C Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellee, -against- FEDERICO PEREZ, Defendant-Appellant. BRIEF FOR RESPONDENT-APPELLEE ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent-Appellee JOSEPH N. FERDENZI Bronx, New York 10451 ERIC C. WASHER (718) 838-7246 Assistant District Attorneys (718) 590-6523 (facsimile) Of Counsel Dated: April 1, 2015 PRINTED ON RECYCLED PAPER TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................... ii STATEMENT .............................................................................................. 1 QUESTION PRESENTED ......................................................................... 2 SUMMARY OF ARGUMENT .................................................................... 2 THE FACTS ................................................................................................ 4 ARGUMENT ............................................................................................... 9 POINT SINCE DEFENSE COUNSEL, WHOSE PERFORMANCE DEFENDANT HAS NEVER CHALLENGED, WAIVED A FORMAL PLEA ALLOCUTION, REVIEW OF THE INSTANT CLAIM IS FORECLOSED. IN ANY CASE, BOYKIN V. ALABAMA DOES NOT APPLY TO PLEA PROCEEDINGS WHERE IT HAS ALREADY BEEN DETERMINED THAT THE DEFENDANT WILL BE CONVICTED OF A VIOLATION AND HIS SENTENCE WILL BE NON- INCARCERATORY. FINALLY, THE RECORD DEMONSTRATES THAT DEFENDANT’S PLEA WAS KNOWING, INTELLIGENT, AND VOLUNTARY... .......................................................................................... 9 Defendant Waived Appellate Review of His Plea Allocution .............. 11 The Boykin Rights Do Not Need To Be Specifically Enumerated During Violation Pleas. ......................................................................... 22 The Record of These Proceedings Affirmatively Demonstrates That Defendant’s Plea Was Knowing, Intelligent, and Voluntary. .............. 32 CONCLUSION ......................................................................................... 40 i TABLE OF AUTHORITIES Cases Boykin v. Alabama, 395 U.S. 238 (1969) ......................................... passim Brady v. United States, 397 U.S. 742 (1970) .................................... 33, 36 Cheff v. Schnackenberg, 384 U.S. 373 (1966) ......................................... 27 Holland v. Florida, 560 U.S. 631 (2010) .................................................. 19 In re Tyrone D., __ NY3d __, 2015 NY Slip Op 01301 (Feb. 12, 2015) .. 14 North Carolina v. Alford, 400 U.S. 25 (1970) .......................................... 11 Padilla v. Kentucky, 559 U.S. 356 (2010) .......................................... 38, 39 People v. Aezah, 191 AD2d 312 (1st Dept), lv denied, 81 NY2d 1010 (1993) ...................................................................................................... 12 People v. Ahmed, 66 NY2d 307 (1985) .................................................... 13 People v. Antommarchi, 80 NY2d 247 (1992) ......................................... 21 People v. Catten, 69 NY2d 547 (1987) ..................................................... 19 People v. Claiborne, 29 NY2d 950 (1972) ................................................ 17 People v. Connor, 63 NY2d 11 (1984) ...................................................... 21 People v. Dumay, 23 NY3d 518 (2014) .................................................... 21 People v. Flinn, 22 NY3d 599 (2014) ....................................................... 21 People v. Garcia, 298 AD2d 107 (1st Dept), lv denied, 99 NY2d 558 (2002) ................................................................................................ 12, 19 People v. Harris, 61 NY2d 9 (1983) ................................. 24, 25, 32, 33, 34 People v. Jackson, 114 AD3d 807 (2d Dept), lv denied, 22 NY3d 1199 (2014) ...................................................................................................... 33 People v. Johnson, 23 NY3d 973 (2014) .................................................. 17 People v. Jones, 81 AD2d 22 (2d Dept 1981) ........................................... 13 People v. Keizer, 100 NY2d 114 (2003) ................................................... 38 ii People v. Letterio, 16 NY2d 307 (1965) ........................................... 3, 8, 30 People v. Lopez, 71 NY2d 662 (1988) ....................................................... 16 People v. Martin, 50 NY2d 1029 (1980) ................................................... 13 People v. Michael, 48 NY2d 1 (1979) ....................................................... 14 People v. Mitchell, 80 NY2d 519 (1992) ................................................... 11 People v. Mosby, 33 Cal.4th 353 (2004) ................................................... 33 People v. Munoz, 121 AD3d 577 (1st Dept 2014) .................................... 29 People v. Murray, 15 NY3d 725 (2010) .................................................... 16 People v. Nixon, 21 NY2d 338 (1967) .............................. 22, 34, 35, 36, 41 People v. Patterson, 39 NY2d 288 (1976) ................................................ 12 People v. Peque, 22 NY3d 168 (2013) .................................... 13, 15, 16, 31 People v. Perez, 116 AD3d 511 (1st Dept 2014) .................................... 3, 8 People v. Javier Sanchez, __ AD3d __, 2015 NY Slip Op 01979 (1st Dept, Mar. 12, 2015) .................................................................................. 18, 29 People v. Session, 34 NY2d 254 (1974) .................................................... 22 People v. Tyrell, 22 NY3d 359 (2013) .............................................. passim People v. White, 56 NY2d 110 (1982) ...................................................... 30 Strickland v. Washington, 466 U.S. 668 (1984) ...................................... 22 United States v. Nash, 703 F.Supp. 507 (W.D.La. 1989), aff’d without opinion, 886 F.2d 1312 (5th Cir. 1989) ................................................. 26 United States v. Vonn, 535 U.S. 55 (2002) .............................................. 25 Wilkins v. Erickson, 505 F.2d 761 (9th Cir. 1974) .................................. 33 Willbright v. Smith, 745 F.2d 779 (2d Cir. 1984) .................................... 34 Statutes and Rules New York City Administrative Code § 10-125(b) .............................. 27, 28 New York City Administrative Code § 16-118(6) .............................. 27, 28 iii CPL § 100.40 ............................................................................................... 5 CPL § 160.55(1)..................................................................................... 3, 31 CPL § 170.10(4)(d) .................................................................................... 21 CPL § 170.30 ............................................................................................... 5 CPL § 170.65 ............................................................................................. 21 CPL § 220.50 ............................................................................................. 25 CPL § 220.60 ............................................................................................. 25 CPL § 340.40(2)......................................................................................... 27 CPL § 440.10 ............................................................................................. 22 CPL § 470.05 ............................................................................................. 13 Federal Rules of Criminal Procedure rule 11 ......................................... 25 Federal Rules of Criminal Procedure rule 58(c) ............................... 26, 27 Penal Law § 10.00(3) ................................................................................ 31 Penal Law § 221.05 ..................................................................................... 4 Penal Law § 221.10(1) ............................................................................ 4, 5 Penal Law § 240.20 ........................................................................... passim Penal Law § 275.35 ........................................................................... 4, 5, 35 Penal Law § 70.15(a) ................................................................................ 35 Other Authorities Black’s Law Dictionary (8th ed 2005) ...................................................... 12 Criminal Court of the City of New York: Annual Report 2013, Plea by Mail, available at http://www.courts.state.ny.us/COURTS/nyc/ criminal/2013%20Annual%20Report%20FINAL%2072214.pdf (accessed Mar. 30, 2015) .................................................................. 28, 29 iv New York City Civil Court Definitions, http://www.nycourts.gov /COURTS/nyc/civil/definitions.shtml (accessed Mar. 30, 2015) ........................................................................................ 18 NLADA, Performance Guidelines for Criminal Defense Representation, guideline 6.4, http://www.nlada.org/ Defender/Defender _Standards / Performance_ Guide lines#sixthree (accessed Mar. 30, 2015) .............. 20 Plea By Mail Program guilty plea form, available at http://www.nycourts.gov/courts/nyc/criminal/pleadguiltybymail.pdf (accessed Mar. 30, 2015) ........................................................................ 28 Random House Webster’s College Dictionary (1998) .............................. 19 Transcript of Oral Argument, People v. Tyrell, 22 NY3d 359 (Nos. 230, 231) ......................................................................................................... 31 v COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellee, : : -against- : FEDERICO PEREZ, Defendant-Appellant. : -------------------------------------------------------------------------x BRIEF FOR RESPONDENT STATEMENT By permission of the Honorable Robert S. Smith, then a Judge of the Court of Appeals, defendant appeals from an order of the Appellate Division, First Department, entered on April 10, 2014, which affirmed a judgment of conviction rendered on December 12, 2011, by the Supreme Court of the State of New York, Bronx County (Gross, J.), convicting him, after a guilty plea, of Disorderly Conduct (Penal Law § 240.20) and sentencing him to pay a $100 fine. Defendant has completed his sentence. QUESTION PRESENTED Whether recitation of the Boykin rights is required when the defendant has waived a “formal” plea allocution, is pleading guilty to a violation, and it has been determined that the sentence will not include a term of incarceration. SUMMARY OF ARGUMENT This appeal does not involve a criminal conviction (compare Boykin v. Alabama, 395 U.S. 238, 239 [1969] [pleas to five robbery counts]; People v. Tyrell, 22 NY3d 359, 362–63 [2013] [pleas to two marijuana misdemeanors]). The defendant, Federico Perez, pleaded guilty to Disorderly Conduct, a violation (Penal Law § 240.20), and was sentenced to pay a $100 fine. He did so eight months after he was arrested, and one month after the plea bargain that he ultimately accepted was offered to him. At the plea proceeding, defendant’s Legal Aid Society attorney waived a “formal” plea allocution. Defendant then stated to the court that he wished to plead guilty to Disorderly Conduct to resolve the charges against him. He also indicated that he had had enough time to discuss the plea with his attorney. Notwithstanding the overwhelming evidence that defendant’s decision, after months of litigation, to plead guilty to a non-criminal 2 offense was a rational one, he now argues that his conviction must be vacated because there was no explicit mention of his Boykin rights by the court during his plea colloquy. This contention must be rejected. As a threshold matter, any challenge to the sufficiency of defendant’s allocution was foreclosed when his attorney told the court that a comprehensive allocution was not necessary. Fairness dictates that defendant’s conviction should not be reversed as a result of actions taken by his own attorney—especially since he has never claimed that she failed to provide him with effective assistance of counsel. Second, this Court has never held, and should not in this case, that Boykin applies to pleas to non-criminal offenses. As the Appellate Division correctly recognized, “‘[t]here are, historically, certain minor transgressions which admit of summary disposition.’” People v. Perez, 116 AD3d 511, 511 (1st Dept 2014), quoting People v. Letterio, 16 NY2d 307, 312 (1965). When a defendant, with the assistance of counsel, is able to resolve a criminal case by pleading guilty to a violation—which will, in most circumstances, not result in a criminal record (see CPL § 160.55[1])—a streamlined allocution is adequate to ensure that the plea 3 is knowing, intelligent, and voluntary. Finally, the totality of the relevant circumstances—and common sense—reinforces the conclusion that defendant’s plea to a violation was an informed choice among the alternative courses available to him at the time he entered his plea. Accordingly, the judgment should be affirmed. THE FACTS Just before 4:00 p.m., on April 13, 2011, uniformed police officers observed defendant and Nathan Ramos in a gold Nissan, on Gun Hill Road in the Bronx. Defendant had been driving and Ramos was sitting in the front passenger seat. In the center console of the vehicle, the officers observed a marijuana cigarette. On the floor of the car, below the passenger seat, were 78 counterfeit DVDs. Regarding the DVDs, defendant told the officers, “I sell [them] to my friends and family.” Defendant was arrested and charged with Failure to Disclose the Origin of a Recording (Penal Law § 275.35); Criminal Possession of Marijuana in the Fifth Degree (Penal Law § 221.10[1]); and Unlawful Possession of Marijuana (Penal Law § 221.05) (SA. 1–2 [accusatory instrument]1). 1 Numerical references preceded by “SA.” are to respondent’s supplemental appendix. 4 At defendant’s arraignment the following day, Lily Goetz of The Legal Aid Society was appointed to represent him. At a calendar date, some two months later, on June 22, 2011, the defendant rejected a plea bargain that entailed a plea to Disorderly Conduct and paying a $250 fine (SA. 4 [Court Action Sheet–Jun. 22, 2011]). In late July, Ms. Goetz requested a Bill of Particulars, demanded discovery, and filed an omnibus motion. In the omnibus motion, counsel moved to suppress the physical evidence recovered from defendant’s vehicle, as well as the statement he had made to the police regarding the counterfeit DVDs. Additionally, Ms. Goetz argued that counts 1 and 2 of the accusatory instrument should be dismissed on facial insufficiency grounds (see CPL §§ 100.40 and 170.30). Specifically, she contended that the allegations in the accusatory instrument failed to establish reasonable cause to believe that defendant possessed the 78 DVDs with the intent to sell or rent them for financial gain, an element of Penal Law § 275.35. With respect to the alleged violation of Penal Law § 221.10(1), counsel asserted that the accusatory instrument failed to demonstrate that the marijuana found in the console of defendant’s 5 car had been burning or open to public view (SA. 9–22 [omnibus motion]). In a decision and order dated September 20, 2011, the court (McGuire, J.) denied the motion to dismiss the first two counts of the accusatory instrument and ordered a suppression hearing (SA. 31–33 [decision and order of the Honorable William McGuire, Sept. 20, 2011]). At defendant’s next court appearance, on November 9, 2011, the People made a new plea offer: a plea to Disorderly Conduct in exchange for a sentence of a $100 fine. The court made a note that defendant “may want [the] plea,” and the case was adjourned to December 12, 2011, with a view to resolving the case (SA. 3 [Court Action Sheet–Nov. 9, 2011]). On that date, the parties appeared before Justice Gross, who acknowledged that the case had been adjourned for a possible disposition. Ms. Goetz informed the court that “[defendant] has authorized me to enter a plea of guilty to the added charge of [D]isorderly [C]onduct with the understanding that he will [be] sentenced to pay [a] $100 fine.” The court asked defense counsel if she 6 was “[w]aiving formal allocution and prosecution by information,” and counsel answered that she was. The court then addressed defendant, and confirmed Ms. Goetz’s representation that he wished to plead guilty to Disorderly Conduct in satisfaction of the charges against him. The court also inquired of defendant whether he had “had enough time to speak to Ms. Goetz about the plea,” and defendant indicated that he had. After confirming that the People had no objection to the “waiver of allocution requested by Ms. Goetz,” the court imposed the promised sentence. If the fine was not timely paid by February 28, 2012, the court cautioned, there would be a ten-day jail alternative. Finally, the court informed defendant that his conviction would be sealed in one year, assuming successful completion of the sentence (SA. 34–36).2 Notwithstanding this resolution, defendant filed a notice of appeal on December 20, 2011, and perfected it in October of 2013. On appeal, he argued that his conviction should be vacated because the court failed to advise him of his Boykin rights and neglected to conduct a factual allocution (defendant’s Appellate Division brief, at 3–9). The Appellate Division rejected these claims and unanimously affirmed the conviction. 2 Defendant paid the fine on March 5, 2012; the jail alternative was not imposed. 7 “Under the particular circumstances of the case,” the court found “that the record establishe[d] defendant’s understanding and waiver of his constitutional rights . . . even though there was no discussion on the record of defendant’s rights under Boykin v. Alabama, 395 U.S. 238 (1969).” People v. Perez, 116 AD3d 511, 511 (1st Dept 2014) (internal citation omitted). Alluding to the fact that defendant had pleaded guilty to Disorderly Conduct, the court observed that “‘[t]here are, historically, certain minor transgressions which admit of summary disposition.’” Id., quoting People v. Letterio, 16 NY2d 307, 312 (1965). In support of its conclusion that defendant’s guilty plea had been knowingly and voluntarily made, the court pointed to the favorable terms of the negotiated disposition, counsel’s waiver, in defendant’s presence, of a “formal allocution,” and defendant’s statements to the court that he did, in fact, wish to plead guilty and that he had had enough time to discuss this decision with his attorney. The court found that “the record show[ed] that defendant had ample opportunity to review his options in consultation with counsel, including a one-month adjournment to consider the offer.” Perez, 116 AD3d at 511. 8 ARGUMENT SINCE DEFENSE COUNSEL, WHOSE PERFORMANCE DEFENDANT HAS NEVER CHALLENGED, WAIVED A FORMAL PLEA ALLOCUTION, REVIEW OF THE INSTANT CLAIM IS FORECLOSED. IN ANY CASE, BOYKIN v. ALABAMA DOES NOT APPLY TO PLEA PROCEEDINGS WHERE IT HAS ALREADY BEEN DETERMINED THAT THE DEFENDANT WILL BE CONVICTED OF A VIOLATION AND HIS SENTENCE WILL BE NON-INCARCERATORY. FINALLY, THE RECORD DEMONSTRATES THAT DEFENDANT’S PLEA WAS KNOWING, INTELLIGENT, AND VOLUNTARY. A full eight months after defendant was arrested in possession of marijuana and dozens of counterfeit DVDs, he decided to resolve his criminal case by pleading guilty to Disorderly Conduct and paying a modest fine. Defendant’s decision to plead guilty made sense, coming, as it did, after his motion to dismiss the misdemeanor charges against him had been denied, and the fine that was to be imposed had been reduced from $250 to $100. Defendant also had plenty of time to mull the decision over; the plea bargain had been offered to him at his prior court appearance, one month earlier. The defendant having expressed interest in the deal, the case had been adjourned for a possible disposition. 9 Consequently, when defendant appeared in court on December 12, 2011, and his attorney announced that “we have a disposition today,” there would have been little reason to anticipate that his decision to plead guilty to a violation would later be challenged on the basis that it was unknowing, unintelligent, and involuntary, due to a supposedly inadequate allocution. After all, defendant’s attorney, who had competently and persistently litigated his case, agreed to waive “formal allocution”—presumably because she had already explained to her client that pleading guilty meant that there would be no trial and no cross-examination of the police officers who had arrested him, and that he would have to admit his guilt during the plea colloquy. Defendant, for his part, told the court during the plea colloquy that he had had ample opportunity to discuss the disposition with Ms. Goetz. Notwithstanding these various demonstrations of an intelligent and voluntary decision, defendant now repeats a claim that a unanimous panel of the Appellate Division rejected: that his conviction must be vacated because the court did not advise him of his Boykin3 3 Boykin v. Alabama, 395 U.S. 238 (1969). 10 rights. This claim fails, preliminarily, because it was waived by defense counsel below, who indicated to the court that a formal plea allocution was not necessary. It also should be rejected on its merits since Boykin, which involved a plea to a capital offense, should not be applied to violation pleas.4 And, in any event, in light of all the relevant circumstances, defendant’s plea to Disorderly Conduct was clearly a “voluntary and intelligent choice among the alternative courses of action open to [him].” North Carolina v. Alford, 400 U.S. 25, 31 (1970). 1. Defendant Waived Appellate Review of His Plea Allocution. The threshold problem with defendant’s challenge to the court’s allocution is that his plea counsel, by waiving formal allocution, 4 These two issues—the waiver of allocution and the fact that defendant’s guilty plea was to a violation—distinguish this case from People v. Tyrell, 22 NY3d 359 (2013). Accordingly, that case does not control the outcome here. In fact, if the Court were to hold, for the first time, that Boykin applies in the same manner to non- criminal offenses as it does to misdemeanors, such a rule would “represent[] a dramatic shift away from customary and established procedure” (People v. Mitchell, 80 NY2d 519, 525 [1992]). But if this Court were to disagree, we note, as we have in other pending appeals (see, e.g., People v. Conceicao, APL-2014-00122), that if Tyrell dispensed with any preservation obligation (including making a contemporaneous objection) for Boykin-related issues when the plea and sentencing occur at the same proceeding, then that case announced a new rule that should only apply prospectively. And if the Court were to agree with the prospectivity argument advanced in Conceicao, that ruling would be dispositive of the outcome of this case. Dispensing with any preservation requirement in a case such as this would result in an anomaly in which defendants pleading guilty to felonies (who are sentenced at a subsequent proceeding) are required to register an objection to raise a Boykin claim, but defendants pleading to minor offenses are not. 11 forfeited appellate review of this issue. A party that has a hand in causing an alleged error during the proceedings below should not, in the case of an adverse judgment, be allowed to reap the benefits of that supposed mistake on appeal. See Black’s Law Dictionary (8th ed 2005) (defining “invited error”); see also People v. Garcia, 298 AD2d 107, 108 (1st Dept 2002) (“[d]efendant’s claim is not only unpreserved but waived, since defendant, through his counsel, is the source of the error”). When a defendant seeks reversal on the basis of a trial court action which he, through counsel, affirmatively indicated he would accept, “public policy demands that the defendant not be rewarded.” Garcia, 298 AD2d at 108, citing People v. Aezah, 191 AD2d 312 (1st Dept 1993). “Were the rule otherwise, the State’s fundamental interest in enforcing its criminal law could be frustrated by delay and waste of time and resources invited by a defendant.” People v. Patterson, 39 NY2d 288, 295 (1976). The invited error doctrine derives from the requirement that, in the majority of cases, only issues promptly objected to at trial can be raised 12 on appeal. See CPL § 470.05.5 The preservation rule promotes “principles of ‘fair play’ . . . at the trial level by affording opposing parties a timely opportunity to counter any claim with argument or evidence” (People v. Jones, 81 AD2d 22, 30 [2d Dept 1981]), and allows the court to correct any claimed error at the earliest opportunity. People v. Martin, 50 NY2d 1029, 1031 (1980). Here, defense counsel did not merely fail to make a motion to withdraw the plea (cf. People v. Tyrell, 22 NY3d 359, 363–64 [2013]); she encouraged the court to forego a comprehensive allocution by expressly waiving “formal allocution” (SA. 35 [plea minutes]). Defense counsel thus represented to the court and the People that the knowing and voluntary character of defendant’s plea would not be the subject of a later challenge. The People, accordingly, did not oppose the “waiver of 5 Although the Court in Tyrell, in dicta, considered the possibility that a plea court’s failure to advise a defendant of his Boykin rights may constitute a mode of proceedings error that could be raised on appeal, even in the absence of an objection (Tyrell, 22 NY3d at 364), this Court’s jurisprudence demonstrates that it is not. Compare People v. Peque, 22 NY3d 168, 183 (2013) (defendant Peque’s challenge to his plea allocution not preserved because he “knew of his potential deportation, and thus had the ability to tell the court if he chose, that he would not have pleaded guilty if he had known about deportation”), with People v. Ahmed, 66 NY2d 307, 309–10 (1985) (appellate challenge to law secretary’s involvement in answering jury notes preserved, even though defense counsel consented to the procedure). 13 allocution requested by [defense counsel]” (SA. 36 [emphasis added]), and the court had no opportunity to obviate the alleged error complained of now. Indeed, the court was entitled to rely upon counsel’s representation that defendant did not require a formal allocution. See In re Tyrone D., __ NY3d __, 2015 NY Slip Op 01301, at *7 (Feb. 12, 2015) (colloquy between counsel and the court sufficient to establish that patient waived annual hearing on his continued confinement at a secure treatment facility). Notwithstanding counsel’s affirmative acquiescence in the abbreviated allocution, defendant now seeks reversal on the ground that the court’s plea allocution should have been more assiduous. But to consider the merits of defendant’s explicitly waived claim would be fundamentally unfair to the trial court and to the People and would undermine the rationale for preservation rules. Had counsel simply requested a formal plea allocution, the trial court undoubtedly would have canvassed the defendant differently, and the claimed error would have been promptly resolved. See People v. Michael, 48 NY2d 1, 6 (1979) (“it is both proper and necessary for the State to require that all 14 such objections be raised at a time when they can be dealt with most readily”). An endorsement of the tactic engaged in here would incentivize defense attorneys not to request plea allocutions—or to waive allocution altogether—while still preserving the defendant’s ability to have an appellate court later void the plea and dismiss the charges. But preservation rules should promote exactly the opposite behavior—that is, bringing any potential error to the court’s attention at the earliest possible opportunity. The fact that the court inquired of defense counsel whether she would waive formal allocution is also significant in that it renders the exception to the preservation doctrine relied on by this Court in Tyrell inapplicable. In Tyrell, the Court found that the “defendant ha[d] no practical ability to object” to the errors in his plea allocutions, and, accordingly, preservation of his voluntariness claim was not required. Tyrell, 22 NY3d at 364, quoting Peque, 22 NY3d at 182–83. There are, however, “significant constraints” on this narrow exception to the preservation doctrine. Peque, 22 NY3d at 182–83. For example, when the error alleged on appeal came to light during the plea or 15 sentencing proceedings, and the defendant had the ability to bring the issue to the court’s attention, he is required to do so in order to preserve his claim. See People v. Murray, 15 NY3d 725, 726–27 (2010) (defendant had to the opportunity, at sentencing, to object to non- conforming term of post-release supervision); Peque, 22 NY3d at 183 (“because defendant knew of his potential deportation, and thus had the ability to tell the court, if he chose, that he would not have pleaded guilty if he had known about deportation, he was required to preserve his claim regarding the involuntariness of his plea”). Here, defendant knew that he was going to receive an abbreviated allocution before the court accepted the plea and imposed sentence; therefore, it cannot be said that he had no opportunity to object to the substance of the allocution and his claim that his plea was involuntary is not preserved.6 Under such circumstances, “the salutary purpose of the preservation rule” (People v. Lopez, 71 NY2d 662, 666 [1988]) is in fact undermined if defendant’s allocution is reviewed on appeal. 6 Nor, under these circumstances, where defense counsel waived allocution, would it be fair to say that “the court’s attention should have been instantly drawn to the problem” (People v. Lopez, 71 NY2d 662, 666 [1988]) that is complained of here. 16 Defendant attempts to sidestep these preservation problems by proposing that, “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” (defendant’s brief, at 15).7 But this interpretation of what is meant by “formal allocution” would render such a waiver meaningless. Where, as here, “a defendant enters a negotiated plea to a lesser crime than one with which he is charged, no factual basis for the plea is required.” People v. Johnson, 23 NY3d 973, 975 (2014); see also People v. Claiborne, 29 NY2d 950, 951 (1972) (“[a] bargained guilty plea to a lesser crime makes unnecessary a factual basis for the particular crime confessed”). Defendant did not commit Disorderly Conduct; the court clearly was not going to require him to allocute to facts establishing the elements of that offense before accepting his plea. Defendant’s 7 This a curious claim since, before the Appellate Division, defendant argued that the court erred by neglecting to conduct a factual allocution. If defendant really believes that “formal allocution” is commonly understood to refer to the factual component of a plea colloquy, then that argument—which is not repeated before this Court—makes little sense. 17 contention that his attorney waived something to which he was not entitled in the first place is, therefore, unavailing.8 Defendant’s narrow definition of allocution is also inconsistent with the explanation of that term provided by the New York State Unified Court System, in a list of definitions of commonly used legal terms provided for the benefit of pro se civil litigants. “Allocution” is defined as “a formal address by a trial judge to the parties on the record to find out if they understand the terms of a stipulation of settlement.” New York City Civil Court Definitions, http://www.nycourts.gov /COURTS/nyc/civil/definitions.shtml (accessed Mar. 30, 2015). Presumably allocution has a similar meaning in the criminal context, namely, an on-the-record address by the court explaining to the parties the terms of the settlement (i.e., the plea bargain), including the trial rights that are forfeited along with the entry of a plea. An attorney who 8 The First Department recently decided another case involving the waiver of allocution. See People v. Sanchez, __ AD3d __, 2015 NY Slip Op 01979 (1st Dept, Mar. 12, 2015). In Sanchez, after the defendant stated to the court that he wished to plead guilty, defense counsel waived “further allocution.” The court vacated the plea, reasoning that the record did not demonstrate that it was knowingly and voluntarily entered. But the court’s analysis suggests that it did not interpret the waiver of further allocution to only include a factual allocution. 18 waives such an explanation, then, should understand that the defendant will not be advised of the Boykin rights.9 Defendant further argues that even if the waiver encompassed an allocution regarding his Boykin rights, since he did not personally assent to the waiver, he cannot be bound by it (defendant’s brief, at 15– 16). But Ms. Goetz, who did agree to the waiver, in defendant’s presence, was acting as his agent, and her “acts (or failures to act) within the scope of the representation are treated as those of [her] client.” Holland v. Florida, 560 U.S. 631, 664 (2010) (Scalia, J., dissenting); see People v. Catten, 69 NY2d 547, 556 (1987); Garcia, 298 AD2d at 108 (“almost all of a defense attorney’s acts or omissions are deemed on appeal to be those of the defendant”). There is no allegation that Ms. Goetz’s waiver of allocution amounted to ineffective assistance of counsel; accordingly, her actions on this issue are attributable to defendant. 9 Standard dictionary definitions also conflict with defendant’s proposed meaning of allocution. See, e.g., Random House Webster’s College Dictionary (1998), definition of allocution (“a formal speech, esp. one that advises or exhorts”). Such a formal address would obviously come from the court, not the defendant. 19 Defendant finally suggests that permitting an attorney to waive allocution would be problematic, because, in such circumstances “nothing in the record” would demonstrate a knowing waiver of one’s trial rights (defendant’s brief, at 15–16). But the waiver itself provides such a record. It is, in effect, tantamount to an affirmative answer from counsel to the question of whether she had explained to her client the rights he was giving up by pleading guilty (see Tyrell, 22 NY3d at 365)10—an obligation that any criminal defense should be expected to fulfill. According to standards promulgated by the National Legal Aid & Defender Association (NLADA), prior to the entry of a guilty plea, defense counsel should “make certain that the client understands the rights he or she will waive by entering the plea and that the client’s decision to waive those rights is knowing, intelligent and voluntary.” NLADA, Performance Guidelines for Criminal Defense Representation, guideline 6.4, http://www.nlada.org/Defender/Defender_Standards/ Performance_Guidelines#sixthree (accessed Mar. 30, 2015) (emphasis 10 Or conversely, it is equivalent to defense counsel answering “No,” when the court asks: “Counsel, do I need to explain to your client the rights he is giving up by pleading guilty?” 20 supplied). Consequently, when a defense attorney waives allocution, the court should be entitled to presume that the attorney, consistent with applicable professional standards, has explained to her client, before the plea proceeding, “what the plea connotes and its consequence” (Boykin, 395 U.S. at 243–44), and that there is no need for the court to redundantly convey the same information.11 This is completely consistent with this Court’s recognition that “a lawyer may be trusted to explain rights to his or her client, and to report to the court the result of that discussion.” People v. Flinn, 22 NY3d 599, 602 (2014); see also People v. Connor, 63 NY2d 11, 14 (1984) (defense counsel may, at arraignment, waive the reading of defendant’s rights under CPL §§ 170.10[4][d] and 170.65); People v. Dumay, 23 NY3d 518, 522–23 (2014) (defense counsel may, in defendant’s presence, waive prosecution by information).12 After all, “if independent and good advice in the interest of the defendant is the goal, it is more important that he consult with 11 On this record, this presumption requires no great leap of faith, given the one- month adjournment between the presentation of the plea offer and its acceptance. 12 The waiver made by the lawyer need not be in language that is understandable to the typical defendant. See Flinn, 22 NY3d at 602 (lawyer’s oral waiver of rights under People v. Antommarchi, 80 NY2d 247 [1992] valid even when it was “unlikely that [the defendant] understood it”). 21 competent counsel than that a harried, calendar-conscious Judge be the one to perform the function in displacement of the lawyer.” People v. Nixon, 21 NY2d 338, 354 (1967). There is, of course, a well-established presumption that counsel has “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland v. Washington, 466 U.S. 668, 690 (1984). If the inference that an attorney who waives allocution does so because she has already explained to her client the ramifications of pleading guilty—which is the only inference that is consistent with reasonable professional judgment—is to be rebutted, it should be done in a CPL § 440.10 proceeding (see People v. Session, 34 NY2d 254, 255–56 [1974]). 2. The Boykin Rights Do Not Need To Be Specifically Enumerated During Violation Pleas. Even if defendant did not waive his ability to challenge the sufficiency of his plea allocution on appeal, his claim nevertheless fails because a recitation of the Boykin rights is unnecessary to ensure a knowing, intelligent, and voluntary plea in cases where the plea bargain involves a non-criminal offense and a non-incarceratory 22 sentence. Indeed, the circumstances that were at issue in Boykin are so dramatically different from the plea here as to render that decision inapposite to the resolution of this case. The circumstances presented in Boykin were admittedly troubling. An Alabama grand jury returned five indictments against Boykin, on five separate charges of common law robbery—an offense that was punishable by death in Alabama at the time. Boykin, 395 U.S. at 239. Three days after counsel was appointed to represent him, Boykin pleaded guilty to all five indictments. “So far as the record show[ed], the judge asked no questions of [Boykin] concerning his plea, and [Boykin] did not address the court.” Id. At the conclusion of a proceeding, conducted before a jury, to determine Boykin’s punishment, he was sentenced to death on each of the five indictments. Id. at 240. Given the sparse record made before Boykin committed himself to a course that carried the possibility of a death sentence, the Supreme Court held that “[it] was error . . . for the trial judge to accept [Boykin’s] guilty plea without an affirmative showing that it was intelligent and voluntary.” Id. A guilty plea, the Court continued, is not be entered into 23 lightly, since it “is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” Id. at 242. Judges canvassing defendants who, like Boykin, are “facing death or imprisonment,” should approach plea proceedings with “the utmost solicitude” in order to ensure that the defendant “has a full understanding of what the plea connotes and its consequence.” Id. at 243–44. Boykin, by its own terms then, makes clear that the Court was chiefly concerned with serious cases where sentences impinging on personal liberty will be imposed. In those scenarios, the court’s plea allocution obligations are greatest. Id. at 243–44. A corollary to this rule is that guilty pleas to lesser offenses (which involve less substantial punishment) need not be as thorough. Indeed, this Court has recognized that “the seriousness of the offense” to which the defendant is pleading guilty is a factor that judges can appropriately consider in deciding, in their discretion, what degree of allocution is necessary. See People v. Harris, 61 NY2d 9, 16 (1983). “Though a rigorous and detailed colloquy 24 may be appropriate in certain instances, under most ordinary circumstances such questioning by the Trial Judge would be an unnecessary formalism.” Id.13 Notably, the Federal Rules of Criminal Procedure embrace the view that Boykin does not apply with equal force to all guilty pleas. Indeed, the potential deprivation of liberty is a precondition of the applicability of Rule 11, which prescribes the steps that federal judges must take before accepting a plea. Rule 11 is “meant to ensure that a guilty plea is knowing and voluntary,” United States v. Vonn, 535 U.S. 55, 58 (2002),14 and requires, among other things, a discussion of each of the three Boykin rights, and the corresponding warning that a guilty plea results in their waiver. See Federal Rules of Criminal Procedure rule 11(b)(1). 13 Although Tyrell reversed two misdemeanor convictions on Boykin grounds, it did not overrule Harris on this point. See Tyrell, 22 NY3d at 366 (“we signal no retreat from the principle that trial courts retain broad discretion in the taking of pleas and need not follow any kind of rigid catechism”). 14 New York’s Criminal Procedure Law does not contain an analogous provision that dictates the topics a plea allocution must cover. See CPL §§ 220.50, 220.60. 25 But the thorough allocution laid out in Rule 11 is not required “in a case involving a petty offense15 for which no sentence of imprisonment will be imposed.” Federal Rules of Criminal Procedure rule 58(c). In such cases, the court may accept a plea as long as it is “satisfied that the defendant understands the nature of the charge and the maximum possible penalty.” Federal Rules of Criminal Procedure rule 58(c)(1); see United States v. Nash, 703 F.Supp. 507, 509–10 (W.D.La. 1989) (guilty plea involving a suspended sentence and fine valid, notwithstanding the fact that “the requirements of Rule 11 and Boykin v. Alabama[] were not followed by the magistrate”; the record demonstrated that “the defendant understood the nature of the charge and the maximum penalty provided by law”), aff’d without opinion, 886 F.2d 1312 (5th Cir. 1989). Rule 58, then, reflects a judgment that an abbreviated allocution is sufficient to ensure a knowing and voluntary plea when the offense is a relatively minor one and it has already been determined that the 15 Petty offense is defined by the Rules as an offense “for which the court determines that, in the event of conviction, no sentence of imprisonment will be imposed.” Federal Rules of Criminal Procedure rule 58(a)(3). 26 sentence will not be incarceratory. The drafters of the rules were, of course, cognizant of Boykin and concluded that, in petty offense cases, the simpler requirement that the court satisfy itself that “the defendant understands the nature of the charge and the maximum possible penalty” is not inconsistent with the rule announced in that case. This conclusion is reasonable since it was established before Boykin was decided that the principal Boykin right—the right to a jury trial—does not attach in cases involving petty offenses where the maximum possible term of imprisonment is six months or less.16 See Cheff v. Schnackenberg, 384 U.S. 373, 379 (1966). Thus, it seems exceedingly unlikely that the Boykin Court would have contemplated the application of that decision to cases like this one. Like the federal system, there is significant precedent in New York for exempting certain petty offenses from Boykin’s purview. For example, since 2004, individuals who are charged with public consumption of alcohol (Administrative Code § 10-125[b]) or public 16 This distinction is codified in New York’s Criminal Procedure Law. See CPL § 340.40(2) (trial of a criminal court information that charges a misdemeanor for which a term of imprisonment of six months or less is authorized “must be a single judge trial”). 27 urination (Administrative Code § 16-118[6]) and receive a summons can plead guilty without setting foot in court. Under New York City’s “plea by mail” program, defendants can resolve cases involving these two charges by filling out a short form and paying the applicable fine by check or money order. In 2013, over 20,000 people took advantage of this program. See Criminal Court of the City of New York: Annual Report 2013, Plea by Mail, at 36, available at http://www.courts. state.ny.us/COURTS/nyc/criminal/2013%20Annual%20Report%20 FINAL%2072214.pdf (accessed Mar. 30, 2015). The form that must be completed to enter a guilty plea cautions the individual that he or she is agreeing to waive arraignment in open court, the assistance of counsel, and the right to receive a copy of the accusatory instrument, and further informs him or her that a conviction by plea is equivalent to a conviction after a trial. But it does not mention the three Boykin rights. See Plea By Mail Program guilty plea form, available at http://www.nycourts.gov/courts/nyc/criminal/pleadguiltybymail.pdf (accessed Mar. 30, 2015). Under defendant’s view, presumably, the tens of thousands of cases that have been resolved by mail since the 28 program’s inception could have been reversed on appeal if these individuals had simply filed a brief contending that their convictions were obtained in violation of longstanding Supreme Court precedent. But this seemingly unchallenged practice demonstrates that it has long been understood that Boykin is simply not applicable in petty offense cases.17 The Appellate Division, in rejecting defendant’s challenge to his plea allocution, recognized the principle that the depth of an allocution properly will vary based on the seriousness of the offense.18 The court 17 Defendant’s position that Boykin applies regardless of the severity of the charge would also mean that defendants pleading guilty in New York City’s summons courts, which, in 2013, handled over 450,000 cases, must be advised of the Boykin rights. Criminal Court of the City of New York: Annual Report 2013, at 31, available at http://www.courts.state.ny.us/COURTS/nyc/criminal/2013%20Annual %20Report%20FINAL%2072214.pdf (accessed Mar. 30, 2015). 18 Defendant contends that since, in a subsequent case involving a Disorderly Conduct plea, People v. Munoz, 121 AD3d 577 (1st Dept 2014), the Appellate Division reversed the conviction and dismissed the accusatory instrument, that the First Department has not distinguished between violations and misdemeanors in assessing the adequacy of an allocution (defendant’s brief, at 12 n.7). But in Munoz, the “defendant said nothing on the record during the proceedings” (id. at 577), which is problematic even when the defendant is pleading guilty to a violation. In a more recent case, Sanchez, __ AD3d __, 2015 NY Slip Op 01979, which involved a misdemeanor driving while intoxicated charge, the court seemed to hold that waiving allocution is appropriate when the defendant is pleading guilty to a violation, but not a misdemeanor. Thus, the First Department’s evolving jurisprudence on this issue does indeed seem to be drawing a distinction between misdemeanor and violation pleas. 29 observed that “‘[t]here are, historically, certain minor transgressions which admit of summary disposition.’” Perez, 116 AD3d at 511, quoting People v. Letterio, 16 NY2d 307, 312 (1965)19; see also Tyrell, 22 NY3d at 368 (Smith, J., dissenting) (acknowledging that the failure to recite the Boykin rights is not uncommon, “especially where the case is a relatively minor one”). No decision from this Court, including Tyrell, undermines this reasoning. Indeed, this Court has never resolved a challenge to a plea allocution involving a violation. The rationale for permitting allocutions of varying degrees of substance is that “all unlawful acts are not of like gravity” (People v. White, 56 NY2d 110, 115 [1982]); indeed, the consequences of a violation conviction are nearly non-existent. Thus, a defendant can understand the significance of his violation plea and its consequences without a lengthy address from the court. Perhaps most significantly, violations, unlike criminal offenses, immediately seal. See CPL § 19 Defendant’s suggestion that the Letterio decision is only relevant in cases involving traffic violation (defendant’s brief, at 10–11) misses that decision’s larger point, which is that not all of the constitutional protections available to defendants facing serious criminal charges apply when the defendant is charged with a petty offense. 30 160.55[1]. Moreover, a conviction of Disorderly Conduct does not carry adverse immigration consequences. Compare Transcript of Oral Argument at 10–11, Tyrell, 22 NY3d 359 (defense counsel indicating that Tyrell was being deported as a result of the two misdemeanor marijuana convictions). And, although a violation conviction can result in fifteen days’ jail (see Penal Law § 10.00[3]), an incarceratory sentence resulting from a guilty plea to a violation is rare. In any case, defendant knew at the time that he entered his plea that he would be sentenced to pay a $100 fine.20 Thus, the court’s failure here to advise defendant of the three Boykin rights before accepting his guilty plea to Disorderly Conduct is of no moment. Defendant confirmed that he wished to plead guilty to Disorderly Conduct in full satisfaction of the charges against him. It was explained that his sentence would be a $100 fine, and that 20 Defendant points out that a conviction of a violation can result in a period of ineligibility for New York City public housing (defendant’s brief, at 11). But this observation is beside the point. Defendant’s claim is that the court should have explained to him the rights he was waiving by pleading guilty. He does not argue, nor could he, that a court must explain every conceivable collateral consequence that could result from his guilty plea. See Peque, 22 NY3d at 193 (deportation is sui generis among the plethora of possible collateral consequences of a conviction, and, accordingly, trial courts are under a due process obligation to canvass non-citizen defendants on this issue before accepting a felony guilty plea). 31 there was a ten-day jail alternative.21 The court further informed defendant that his conviction would be sealed, as long as he timely paid the fine. Defendant personally stated to the court that he did in fact wish to plead guilty and that he had had enough time to speak with his attorney about the plea bargain. This colloquy was more than sufficient under the circumstances. 3. The Record of These Proceedings Affirmatively Demonstrates That Defendant’s Plea Was Knowing, Intelligent, and Voluntary. Even if this Court were to hold that Boykin applies, to some degree or another, to violation pleas, the record created during the eight months that this case was litigated affirmatively demonstrates that defendant’s plea was intelligent and voluntary. As this Court recognized in Harris, a plea’s validity depends on a determination of whether it “represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Harris, 61 NY2d at 19 (internal quotation marks omitted). 21 As stated, the jail alternative was not imposed. But it is worth emphasizing that defendant was sentenced to pay a fine; the jail alternative was simply a mechanism to enforce compliance with the terms of the bargained-for disposition. Thus, the jail alternative is properly seen not as punishment for the Disorderly Conduct conviction, but as a subsequent penalty that is available in the event the fine is not paid. 32 This standard predates Boykin. See Brady v. United States, 397 U.S. 742, 747 n.4 (1970). “The new element added in Boykin was the requirement that the record must affirmatively disclose” that the standard has been met. Id.22 The record on review, however, is not strictly limited to the minutes of the plea proceeding.23 See Harris, 61 NY2d at 19 (“the voluntariness of [a] plea can be determined only by considering all of the relevant circumstances surrounding it” [alteration and emphasis in original; internal quotation marks omitted]); accord People v. Mosby, 33 Cal.4th 353, 361 (2004) (“an appellate court must go beyond the courtroom colloquy to assess” whether a plea is knowing and voluntary).24 Indeed, this Court has 22 It has been pointed out that, in Brady, the Supreme Court, while acknowledging Boykin, nevertheless “upheld a guilty plea as voluntary and intelligent even though [the] defendant had not been specifically advised of the three rights discussed in Boykin.” Wilkins v. Erickson, 505 F.2d 761, 763 (9th Cir. 1974). 23 Apparently, defendant takes no issue with this position since he proffers his minimal criminal history in support of his allegation that he was ignorant of his Boykin rights (defendant’s brief, at 3, n.1). Nor does Tyrell conflict with such an approach, since, in that case, the defendant twice pleaded guilty at his arraignment. Accordingly, the record on review was necessarily limited to what could be discerned from those brief proceedings. 24 See also People v. Jackson, 114 AD3d 807, 807–808 (2d Dept 2014) (upholding guilty plea and acknowledging, among other things, “the defendant’s background, the rationality of the plea, and the other assurances of voluntariness provided on the record”). 33 identified a number of factors—which generally are not evident from the plea minutes—that are relevant in evaluating the validity of a plea. See Harris, 61 NY2d at 16; Nixon, 21 NY2d at 355. These factors—which include defense counsel’s level of engagement, the favorability of the bargained-for disposition, and the “pace of the proceedings” (Harris, 61 NY2d at 16)—uniformly weigh in favor of upholding the instant plea. First, the record convincingly demonstrates that defendant benefited from the assistance of competent and engaged counsel. See Nixon 21 NY2d at 353 (“the actual intensive participation by counsel” is an important consideration in assessing the validity of defendant’s plea); Willbright v. Smith, 745 F.2d 779, 781 (2d Cir. 1984) (“a significant factor in determining whether a plea is intelligently and voluntarily entered is whether it was based on the advice of competent counsel”). Over the course of eight months, defendant’s attorney filed a thoughtful motion to dismiss two counts of the accusatory instrument on the ground that they were facially insufficient, and demanded hearings, discovery, and a bill of particulars. Thus, this is not a case 34 that was handled in a perfunctory manner. Cf. Tyrell, 22 NY3d at 361– 62 (finding that defendant’s pleas were not knowingly entered where the two cases were resolved at arraignments). Relatedly, “the rationality of the ‘plea bargain’” is a relevant consideration in assessing the knowing and voluntary nature of a plea (Nixon, 21 NY2d at 353), and defense counsel ultimately negotiated a very favorable disposition for defendant. Although the top charge against defendant was an A misdemeanor that carried a potential term of incarceration of one year (see Penal Law §§ 275.35; 70.15[a]), he was able to plead guilty to a violation—which, as stated, would not burden him with a criminal record—and was sentenced to pay a modest fine, which was reduced from $250 to $100 during the plea bargaining process. Moreover, defendant’s plea came after his motion to dismiss the two misdemeanor counts in the accusatory instrument had been denied. That adverse ruling provides further evidence that defendant’s decision to plead guilty was rational. He was arrested in possession of a marijuana cigarette and 78 counterfeit DVDs, which he admitted to 35 selling to friends and family. Defense counsel could have advised defendant that the evidence against him was strong, there were no viable defense strategies left to be pursued, and taking a plea to a non- criminal offense was therefore a favorable resolution of his case. See Brady, 397 U.S. at 743 (guilty plea knowing and voluntary where defendant decided to plead guilty after learning that his codefendant would be available to testify against him). It is also significant that defendant had a full month to consider whether to accept the instant plea (see Nixon, 21 NY2d at 353 [“speed or slowness of the procedure in the particular criminal court” will impact on defendant’s ability to appreciate the consequences of his plea]). The record indicates that, on November 9, 2011, the case was adjourned for a month so that defendant could decide whether to accept the plea bargain. Therefore, it cannot be said that defendant had inadequate time to consider the pros and cons of accepting the plea, or to discuss the matter with his attorney. Moreover, the combination of defendant’s statement that he had had enough time to discuss the plea with Ms. Goetz, with the waiver of allocution—which, as demonstrated, 36 amounted to a representation from counsel that she had already imparted to her client the consequences of his plea—provides a record that “defendant consulted with his attorney about the constitutional consequences of a guilty plea.” Tyrell, 22 NY3d at 365. Defendant attempts to downplay the significance of this one- month adjournment by arguing that “the record does not establish that appellant ever even spoke to his attorney during this period” (defendant’s brief, at 13–14 [emphasis in original]). But the assertion that the record is silent on whether defendant and Ms. Goetz discussed the plea before the plea proceeding is, simply, mistaken, since defendant told the court that he had had enough time to discuss the matter with his attorney. The only inference to be drawn from this statement is that defendant and Ms. Goetz had a conversation about the proposed disposition at some point before the December 12 court appearance. Moreover, appellate counsel’s suggestion that Ms. Goetz and defendant did not discuss the plea bargain after the case had been adjourned for a month with an eye toward resolving it reflects a rather 37 uncharitable view of his colleague, Ms. Goetz—and one which is difficult to reconcile with her otherwise demonstrably diligent work on this case. As pointed out, applicable professional standards impose an obligation on defense attorneys to advise their clients, in advance of a plea proceeding, of the rights that a guilty plea operates to forfeit. The suggestion that this obligation was not met during the one-month adjournment should be rejected, particularly since, as noted, counsel waived a formal allocution. Lastly, if this Court finds that defendant’s plea was unintelligent and involuntary, the accusatory instrument should not be dismissed. “A guilty plea . . . generally marks the end of a criminal case, not a gateway to further litigation.” People v. Keizer, 100 NY2d 114, 118 (2003). This will only be true, however, if there is some incentive for defendants to adhere to the terms of their plea bargains. One such incentive is “the nature of relief secured by a successful . . . challenge to a guilty plea,” which is generally “the opportunity to withdraw the plea and proceed to trial.” Padilla v. Kentucky, 559 U.S. 356, 372–73 (2010). A defendant contemplating challenging his guilty plea must consider 38 whether that challenge is worth “los[ing] the benefit of the bargain obtained as a result of the plea.” Id. at 373. If an inadequate record that a plea is knowing and voluntary automatically mandates dismissal of the accusatory instrument, this principle would be eviscerated in countless cases. The remedy in cases of this sort should instead address the nature of the alleged error—namely, that the record failed to demonstrate that the defendant made a knowing and intelligent waiver of his Boykin rights. That deficiency should be corrected by returning the defendant to his pre-pleading status. That way, the defendant has the opportunity to plead guilty again to the same offense—hopefully with a more comprehensive allocution—or he can choose to exercise the trial rights that he claims he was previously unaware of. The other advantage of this remedy is that it will weed out frivolous claims: a defendant who understands that the result of a successful challenge to the adequacy of his plea colloquy is further litigation will be unlikely to disingenuously claim that he was “hoodwinked into pleading guilty by ignorance of his Boykin rights.” Tyrell, 22 NY3d at 368 (Smith, J., dissenting). 39 CONCLUSION This Court should affirm the decision and order of the Appellate Division. Respectfully submitted, ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent By: ERIC C. WASHER Assistant District Attorney Appeals Bureau JOSEPH N. FERDENZI ERIC C. WASHER Assistant District Attorneys Of Counsel April 1, 2015 40