The People, Respondent,v.Tyrone Davis, Appellant.

Brief

N.Y.November 17, 2014

-1- August 18, 2014 Andrew W. Klein Clerk of the Court New York Court of Appeals 20 Eagle Street Albany, NY 12207-1095 Re: People v. Tyrone Davis 500.11 Submission APL-2014-00198 To the Court: Appellant’s plea and sentence should be vacated because he never allocuted to each element of attempted burglary in the third degree. Although there are several procedural issues, each is a non-starter on appeal. First, although Appellant’s sentence has expired, this appeal is still justiciable, because it is the sufficiency of the plea rather than the length of the sentence which Appellant now challenges on appeal. People v. Hovanec, 89 A.D.2d 611 (2d Dept. 1982)(“Appeal dismissed as moot. The defendant’s sentence has expired.”). Second, the sufficiency of the plea is reviewable on appeal, notwithstanding defense counsel’s failure to object or file a motion to vacate the judgment of conviction, under section 440.10 of the Criminal -2- Procedure Law. This plea falls within the purview of the “rare case” exception to the preservation requirement, People v. Lopez, 71 N.Y.2d 662, 666 (1988), because the defendant’s recitation of the facts clearly cast significant doubt on his guilt. Indeed, he clearly and unambiguously negated an essential element of the crime of attempted burglary in the third degree: the intent to commit a crime therein. See People v. Beasley, 25 N.Y.2d 483 (1969)(factual recitation appeared to negate essential element and evidence showed defendant may not have understood nature of charge); People v. Serrano, 15 N.Y.2d 304 (1965)(factual recitation negated essential element of crime). Notably, after Appellant denied any intent to commit a crime therein, the Court failed to ask a single question on this issue, let alone conduct an inquiry. Third, even though Appellant is potentially deportable (Sentence: 5), his six-month sentence would appear to preclude that. He would thus remain amenable to the mandate of this court. 8 U.S.C. § 1227(a)(2)(A)(iii)(“[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” An “aggravated felony” includes a “burglary offense for which the term of imprisonment at least one year.” 8 U.S.C. § 1101(a)(43)(G)(emphasis added). Fourth, the appellate waiver was defective and, therefore, unenforceable. The Supreme Court, Appellate Division, Second Department obviously agreed, because it never even acknowledged the appellate waiver. Its finding was correct. While there is no “uniform mandatory catechism of pleading,” People v. Nixon, 21 N.Y.2d 338, 353 (1967), cert. denied sub nom. Robinson v. New York, 393 U.S. 1067, 21 L. Ed. 2d 709, 89 S. Ct. 721 (1969), a waiver of the right to appeal will not be enforced unless it was knowingly, intelligently, and voluntarily entered. People v. Seaberg, 74 N.Y.2d 1, 11 (1989). “To facilitate appellate review, the Seaberg opinion urges the trial courts to ensure that the terms and conditions of the agreement, as well as the accused’s understanding of those terms and conditions, are made apparent on the face of the record.” People v. Callahan, 80 N.Y.2d 273, 280 (1992). -3- Here, the County Court did not place the terms and conditions of the appellate waiver on the record. In fact, it made no inquiry of any kind. Aleman, 43 A.D.3d at 757-58 (“ ... we would find the waiver to be defective as well. There was no explanation whatsoever regarding the waiver.”). Instead, it improperly delegated that function to the Assistant District Attorney, whose limited, truncated inquiry was insufficient. After Appellant’s guilty plea had been taken, the prosecutor first said, “[a]t this point in time, the [P]eople are asking you to waive your right to appeal” (Plea: 11). The timing was wrong: she should have asked that before the defendant offered to plead guilty, and was allocuted, so that this was a knowing, intelligent, voluntary part of the pleading calculus. Cf. People v. Finnegan, 112 A.D.3d 847 (2d Dept. 2013)(“These circumstances do not establish that the defendant knowingly, voluntarily, and intelligently agreed to waive his right to appeal as a condition of his pleas of guilty.”). The prosecutor then asked if Appellant had spoken to counsel about the waiver and if he was knowingly and freely waiving his right to appeal (Plea: 11). Yet this bare inquiry was insufficient to elicit an effective waiver for a variety of reasons. Initially, the prosecutor omitted what makes an appellate waiver knowing and intelligent: a simple, explanation, in plain English, to the defendant, about the meaning, and import, of the waiver. Next, the prosecutor never explained that an appellate waiver barred a defendant from appealing his conviction. Nor did she explain that a higher court would not be allowed to decide if the lower court made an error in accepting the plea. Absent any explanation of an appellate waiver, it cannot be deemed knowing, intelligent and voluntary. People v. Fowler, 111 A.D.3d 958 (2d Dept. 2013)(“we find that the defendant’s purported waiver of his right to appeal was invalid. The record does not demonstrate that the defendant grasped the concept of the appeal waiver and the nature of the right he was forgoing”)(internal quotation marks omitted); People v. Bradshaw, 76 A.D.3d 566 (2d Dept. 2010)(“On appeal, the defendant contends that his waiver of the right to appeal is not enforceable because the Supreme Court provided virtually no 1. Appellant argued the federal constitutional aspect of his claim to the Second Department, and renews his claim to this Court. A plea that omits an element is unconstitutional, because Due Process requires that each element of a crime be proven beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)(the Court “explicitly” held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with -4- explanation regarding the waiver .... We agree”), aff’d, 18 N.Y.3d 257, 259 (2011)(“In People v. Lopez, 6 N.Y.3d 248, 844 NE2d 1145, 811 NYS2d 623 [2006]), we emphasized, once again, that ‘[a] waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily’ (6 NY3d at 256). Applying this standard here, we hold that the record fails to establish that defendant validly waived his right to appeal.”). The execution of a written appellate waiver (Plea: 12) does not excuse the County Court’s failure to explain the import of the waiver to the defendant. People v. Keiser, 100 A.D.3d 927 (2d Dept. 2012)(“A detailed written waiver can supplement a court’s on-the-record explanation of what a waiver of the right to appeal entails, but a written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal as a condition of the plea agreement”)(internal quotation marks and citation omitted). Section 140.20 was Violated Under section 140.20 of the Penal Law, “[a] person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.” Here, however, the plea colloquy contains no admission that Appellant remained unlawfully in the vacant home with the intent to commit a crime therein. Absent this vital proof, his plea should be vacated, because it violates federal Due Process.1 which he is charged.”). Here, the dispositive element of burglary-- “intent to commit a crime therein”--was never established, let alone proven. Were Appellant to only present this federal constitutional claim to the Second Department, and not this Court as well, he would forfeit his habeas corpus claims in federal district court, should that relief be sought. 28 U.S.C. § 2254(b)(1)(A). To provide the State with the necessary “opportunity,” the defendant must fairly present his claim in each appropriate state court (including a state supreme court with powers of discretionary review), alerting that court to the federal nature of the claim and “giv[ing] the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999). Compare Jordan v. Lefevre, 206 F.3d 196, 198 (2d Cir. 2000)(to avoid a finding of non-exhaustion, “ ... Petitioner’s counsel has the obligation to set out these arguments. Counsel may not transfer to the state courts the duty to comb through an applicant’s appellate brief to seek and find arguments not expressly pointed out in the application for leave.”). -5- During the plea colloquy, the prosecutor asked the defendant if he had entered the home “to steal things.” Defense counsel shook his head, apparently in the negative, while defendant refused to answer the question (Plea: 9). To this point, therefore, the prosecutor clearly failed to establish that Appellant intended to commit a crime therein. The prosecutor then asked Appellant if the co-defendant had stolen anything from the home, and Appellant said, yes, he did. He explicitly removed himself from any intent to steal by saying only Mr. Gilly removed copper piping. At the same time, he never said he shared Gilly’s intent, such that he bore accomplice liability. Next, the prosecutor sought to elicit that defendant stayed at the 2. A person may be found guilty of burglary when he “knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein.” Penal Law § 140.30. “A person ‘enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so.” Penal Law § 140.00(5). -6- home without a “lawful right to do so.” Yet remaining inside either an2 abandoned or vacant home, with no intent to commit any crime therein, is a trespass, not a burglary. What elevates the trespass to a burglary is the unlawful presence with the concommitant intent to commit a crime therein. Yet that did not happen here. The facts which make out the burglary are not the unlawful presence--as the prosecutor mistakenly believed--but the intent to commit a crime after the unlawful entry upon or into the premises. People v. Cajigas, 19 N.Y.3d 697, 701 (2012)(“Burglary, in its simplest form, is a trespass into a building coupled with the intent to commit a crime therein (see Penal Law § 140.20). Trespass occurs when the entry is knowingly unlawful (see Penal Law § 140.05)”). Of course, “the People are not required to prove the particular crime that the defendant intended to commit inside the burglarized structure.” Id. (citing People v. Mahboubian, 74 N.Y.2d 174, 193 (1989). While any crime will suffice under the burglary statute, here there was no intent to commit a crime therein. All the prosecutor elicited was the first two elements of the statute [“[1] enters or remains unlawfully [2] in a building”] without the third element [“with intent to commit a crime therein”]. The unlawful remaining might commence the burglary, but the burglary remains inchoate, and little more than a trespassory offense, until Appellant takes the additional step of intending to commit a crime therein. The offense of burglary is simply not committed by unlawfully remaining--which is all Appellant admitted to in his colloquy. Indeed, were that the law, every trespassory offense would automatically--and immediately--be transformed into a burglary. People v. King, 61 N.Y.2d 550, 554 (1984)(In order to commit “burglary in the -7- third degree,” a person must “knowingly enter[] or remain[] unlawfully in a building with intent to commit a crime therein” (Penal Law, § 140.20)). And under that odd view of the criminal law, the lower crime of trespass would be subsumed within the higher crime of burglary, such that the trespass would cease to exist. Even where burglary is predicated on “unlawfully remaining,” a defendant must have had the intent to commit a crime at the time authorization to be on the premises terminated. Here, Appellant admitted he lacked authorization, yet he never conceded--let alone admitted--that he had the intent to commit a crime therein, even remaining mute when asked: “Did you go inside to steal things, to take things?” (Plea: 9). His silence, in fact, underscores his lack of mens rea. Appellant’s unauthorized presence does not ipso facto establish the elements of burglary, because, through his demeanor, he specifically disclaimed any intent to steal copper piping. End even after naming the co-defendant as the larcenous party, and agreeing to testify against him, he never said he shared his intent to steal the copper. People v Rodriguez, 68 A.D.3d 1351 (3d Dept. 2009)(“When burglary is predicated on unlawfully remaining, a defendant must have had the intent to commit a crime at the time authorization to be on the premises terminates”)(citations omitted). No doubt, “[b]ecause the element of intent is subjective, it may be inferred from the circumstances of the case.” People v. Ostrander, 46 A.D.3d 1217, 1218 (3d Dept. 2007). Here, however, Appellant’s intent was clear: he needed a place to sleep, and thus committed a trespass, but he neither stole nor shared his co-defendant’s intent to steal copper, and thus did not commit burglary. No facts in the record, and no words out of the defendant’s mouth, rise to the level of a larceny. Nor were there any untoward circumstances of his entry, unexplained presence at the home, or even any actions and statements when confronted by either the homeowner or police. Compare id. (“intent may be inferred from the circumstances of the intruder’s unlawful entry, unexplained presence on the premises, and actions and statements when confronted by police or the property owner. Defendant parked down the road from the house, -8- rather than in the driveway, and a path through brush led from his vehicle to the house. It was a hot summer night, but defendant wore a dark sweatshirt with the hood over his head. He entered the home after 11:00 P.M. on a night when he knew that the husband and children would be out of town, leaving the wife home alone. His knowledge that the wife would be home conflicted with his statement that he was checking the house because the family was away. Despite his claim that he was checking the house to protect it for his friends, he fled after hearing a scream and did not thereafter call his friends or the police. When the police first approached him regarding this incident, defendant stated that he was at home that night, but after further questioning he acknowledged being at the house. This record evidence was legally sufficient to establish defendant’s intent”)(citations omitted). On the facts of this case--where the defendant specifically denied any intent to commit a crime once inside the home--this Court should reverse Appellant’s plea and sentence. Very truly yours, Steven A. Feldman SAF:hp 500.11(c) submission filed in digital format -9- COURT OF APPEALS STATE OF NEW YORK _________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- TYRONE DAVIS, Defendant-Appellant. _______________________________________ I, Steven A. Feldman, an attorney duly admitted to practice law in the State of New York, hereby affirm, under penalties of perjury, that, on August 19, 2014, I served a copy of this 500.11 letter by first class United States mail, on the Suffolk County District Attorney, Criminal Courts Building, Center Drive South, Riverhead, NY 11901-3304, and on Tyrone Davis, 10 Isles Place, Copaigue, New York, 11726. _______________________ Steven A. Feldman