The People, Respondent,v.Steven Myers, Appellant.BriefN.Y.June 6, 2018 Estimated time: To be argued by: 15 minutes John A. Cirando, Esq. Syracuse, New York APL-2017-00157 STATE OF NEW YORK COURT OF APPEALS ___________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against STEVEN MYERS, Defendant/Appellant. _____________________________ Onondaga County SCI No. I-2012-0715-1 Appellate Division Docket No. KA-14-01826 _____________________________ THE DEFENDANT/APPELLANT’S BRIEF D.J. & J.A. CIRANDO, ESQS. Attorney for Defendant/Appellant 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285 John A. Cirando, Esq. Bradley E. Keem, Esq. Elizabeth deV. Moeller, Esq. Of Counsel i TABLE OF CONTENTS PRELIMINARY STATEMENT ....................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................. 2 POINT I ...................................................................................................................................... 10 APPELLANT’S WAIVER OF INDICTMENT WAS NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTERED. POINT II ................................................................................................................................... 23 APPELLANT DID NOT VALIDLY WAIVE HIS RIGHT TO APPEAL. CONCLUSION............................................................................................................................... 27 THE JUDGMENT OF CONVICTION SHOULD BE UNANIMOUSLY REVERSED. CERTIFICATE OF COMPLIANCE........................................................................................... 28 ii TABLE OF AUTHORITIES Cases Faretta v. California, 422 U.S. 806, 833-834 [1975] ............................ 20 Matter of Simonson v. Cahn, 27 N.Y.2d 1, 3 [1970] ........................... 11, 12 People ex rel. Battista v. Christian, 249 N.Y. 314, 319 [1928] .. 16 People v. Banville, 134 A.D.2d 116, 122 [2nd Dept. 1988] .................. 13 People v. Boston, 75 N.Y.2d 585, 589 [1990] ................................... 10, 11, 12 People v. Bradshaw, 18 N.Y.3d 257, 264-266 [2011] ..................... 17, 23, 24 People v. Callahan, 80 N.Y.2d 273, 283 [1992] ............................................. 23 People v. Carno, 101 A.D.3d 1663, 1664 [4th Dept. 2012] ........... 24, 25, 26 People v. Davidson, 136 A.D.2d 66, 69 [2nd Dept. 1988]....................... 16 People v. Davis, 49 N.Y.2d 114 [1979] .............................................................. 16 People v. Duchin, 12 N.Y.2d 351, 353 [1963] ............................................... 16 People v. Gajadhar, 9 N.Y.3d 438, 447-448 [2007] ............................. 17, 22 People v. Haffiz, 19 N.Y.3d 883, 884 [2012] ............................................... 18 People v. Harris, 61 N.Y.2d 9, 17 [1983]................................................. 18, 19 People v. Iannone, 45 N.Y.2d 589, 594 [1978] ............................................. 21 People v. Johnson, 109 A.D.3d 1191, 1191 [4th Dept. 2013] ............... 24 People v. Lopez, 6 N.Y.3d 248, 257 [2006] .................................. 17, 22, 23, 24 People v. McCoy, 107 A.D.3d 1454, 1454 [4th Dept. 2013] .................... 24 People v. McQueen, 52 N.Y.2d 1025 [1981]....................................................... 16 People v. Members, 100 A.D.3d 1543 [4th Dept. 2012] .............................. 16 People v. Moissett, 76 N.Y.2d 909, 910-911 [1990] ................................. 23 People v. Page, 88 N.Y.2d 1, 6 [1996] ............................................ 13, 15, 16, 22 People v. Pelchat, 62 N.Y.2d 97, 104 [1984] ................................... 16, 19, 20 People v. Ramos, 7 N.Y.3d 737, 738 [2006] .............................................. 18, 24 People v. Sawyer, 274 A.D.2d 603, 604 [3rd Dept. 2000]................. 19, 20 People v. Seaberg, 74 N.Y.2d 1, 7 [1989]................................................. 23, 24 People v. Slaughter, 78 N.Y.2d 485 [1991] .................................................... 20 People v. Smith, 92 N.Y.2d 516, 520 [1998] .................................................. 20 People v. Sougou, 26 N.Y.3d 1052, 1054 [2015]........................................... 18 People v. Teatom, 91 A.D.3d 1025 [3rd Dept. 2012]................................... 16 People v. Tyrell, 22 N.Y.3d 359, 365 [2013] ............................................... 18 People v. Wallace, 250 A.D.2d 398 [1st Dept. 1998] ................................ 16 iii Statutes Criminal Procedure Law § 190.20 ............................................................................ 22 Criminal Procedure Law § 190.50[5] ..................................................................... 19 Criminal Procedure Law § 190.50[5][a] ........................................................ 19, 20 Criminal Procedure Law § 190.52[1] ............................................................... 19, 20 Criminal Procedure Law § 195.10 ............................................................................ 10 Criminal Procedure Law § 195.20 ........................................................ 9, 11, 13, 14, 15 Criminal Procedure Law § 195.20[a-b] ................................................................ 11 Criminal Procedure Law § 195.30 ............................................................................ 11 Criminal Procedure Law Article § 195.10[1] .................................................. 10 Criminal Procedure Law Article § 320.10 ................................................... 14, 15 Constitutional Provisions New York Constitution Article I, § 2 .................................................... 14, 15, 17 New York Constitution Article I, § 6 .............................................. 10, 12, 13, 17 iv QUESTIONS PRESENTED 1. Whether appellant’s waiver of Indictment should have been knowingly, intelligently, and voluntarily entered? 2. Whether appellant validly waived his right to appeal? 1 APL-2017-00157 STATE OF NEW YORK COURT OF APPEALS ___________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against STEVEN MYERS, Defendant/Appellant. _____________________________ Onondaga County SCI No. I-2012-0715-1 Appellate Division Docket No. KA-14-01826 _____________________________ THE DEFENDANT/APPELLANT’S BRIEF PRELIMINARY STATEMENT This is an appeal, from a Memorandum and Order of the Appellate Division, Fourth Department, entered on December 23, 2016, affirming a judgment of conviction under Superior Court Information No. I-2012-0715-1, entered March 25, 2014, in Onondaga County Court (John J. Brunetti, A.J.) for the crime of BURGLARY IN THE THIRD DEGREE, following a guilty plea. By Certificate Granting Leave, entered July 28, 2017, Leave to Appeal to the Court of Appeals was granted by Senior Associate Judge of the Court of Appeals Jenny Rivera. 2 STATEMENT OF FACTS On or about April 12, 2012, appellant was charged, by Information, in the Town of Salina, County of Onondaga, with the crime of BURGLARY IN THE THIRD DEGREE (12). At the plea proceedings of July 9, 2012, appellant appeared in Onondaga County Court (John J. Brunetti, A.J.) with defense counsel (15). The trial court began by stating that appellant’s application for Grand Jury waiver met the requirements of the statute, and therefore, entered an Order, and filed the Superior Court Information (11-14, 16). The Information alleged that appellant knowingly entered or remained unlawfully in a building at 604 Old Liverpool Road with the intent to commit a crime therein (13a-13b). Defense counsel acknowledged receipt and waived a reading of the Superior Court Information (17). The trial court then informed appellant that if he pled guilty to the crime of BURGLARY IN THE THIRD DEGREE, he could receive an indeterminate term of imprisonment having a minimum term of two and one-third years, and a maximum term of seven years (17). The trial court also indicated that appellant would be required to pay restitution of approximately $200 or $300 (16). The trial court informed appellant of the terms of the plea agreement and explained that if he completed the Judicial Diversion Treatment Program (“JDPT”), he would be guaranteed a misdemeanor plea and a Conditional Discharge (17). The trial court further stated that if appellant were to 3 fail to complete the JDTP, he would again face the aforementioned sentence (17-18). Appellant agreed to the terms of the plea agreement (18). Appellant stated that he wished to plead guilty to the crime of BURGLARY IN THE THIRD DEGREE (18). The trial court asked appellant if he admitted that on or about April 19, 2012, in the Town of Salina, Onondaga County, he knowingly entered or remained unlawfully in a building at 604 Old Liverpool Road with the intent to commit a crime therein (18). Appellant responded, “Yes, your honor” (18). The trial court asked appellant his age: whether he could read and write English; whether he had any physical or mental problems that affected his understanding of the proceedings; whether he had taken any drugs or medication before coming to court; and whether he had sufficient time to discuss his case with his lawyer (19). Appellant answered the trial court’s questions with responses of “No, Your Honor,” or “Yes, Your Honor” (19). The trial court asked appellant if he was currently on Parole, and appellant answered in the negative (19). The trial court then informed appellant of the rights he would give up by pleading guilty including: the right to a trial in front of a jury; the right to call witnesses of his behalf; and the right to be proven guilty beyond a reasonable doubt (20). Appellant indicated he understood by replying, “Yes, Your Honor” (20). 4 The trial court informed appellant that a guilty plea was equivalent to a conviction after a trial and appellant again indicated that he understood by responding, “Yes, your honor” (20- 21). Appellant indicated he did not have any questions for the trial court (21). At that point, the trial court was informed that appellant was on Probation, but the trial court continued with the proceedings (21). The trial court determined that appellant made a voluntary plea with a factual basis, and accepted his guilty plea (22). The trial court indicated that appellant’s case should be sent to the JDTP (22). Appellant appeared before the JDTP Court (Jeffery R. Merrill, A.J.)on July 17, 2012 (24). The JDTP Court indicated that appellant was required to pay restitution, and that, if he was successful in the JDTP, his felony plea would be withdrawn and a misdemeanor conviction for TRESPASS IN THE SECOND DEGREE or LARCENY would be entered in its place (26, 32-34). The JDTP Court asked appellant if he had reviewed the contract with his attorney, and if he understood the terms (26, 32-34). Appellant responded, “Yes, your honor” (26). The JDTP Court indicated that the plan was to get appellant into treatment, and then employed (27). Appellant again indicated that he understood (27). The JDTP Court examined appellant’s prior Record and noted that he had numerous traffic violations and fines, as well as a DWI Violation of Probation (27- 28). The JDTP Court accepted appellant’s admission and found him 5 in violation of the terms of his probation (28). The JDTP Court then sentenced appellant to time served for the traffic violations and fines, and lifted the suspensions that resulted from such violations (28-29). The JDTP Court explained the terms of the JDTP to appellant and informed him he would be going to an In-Patient Treatment Facility (29-30). During the JDTP proceedings of August 21, 2012, appellant informed the JDTP Court that he successfully completed his In- Patient Treatment Program and was living in a Halfway House (38). The JDTP Court indicated that it was pleased with appellant’s progress and told him to take the process one step at a time (38). Appellant appeared before the JDTP Court again, on September 11, 2012, and indicated things were going well at the Halfway House (42). During the JDTP proceedings of October 9, 2012, the JDTP Court indicated that appellant was doing well, all his drug screens were clean, and that the Halfway House referred to appellant as a “model citizen” (45). During the JDTP proceedings of November 13, 2012, the JDTP Court indicated that appellant had some “minor issues” at his Halfway House, but that he was still sober (48). During the JDTP proceedings of December 11, 2012, the JDTP Court explained that appellant had an issue with Jobs Plus and was expelled from the Halfway House (51). The JDTP Court told 6 appellant to stay with his brother and look for employment, and that he was in jeopardy of losing the benefits of the JDTP (51). Appellant indicated that he understood (51). Appellant appeared before the JDTP Court again on February 5, 2013 (53). The JDTP Court indicated that appellant was doing well, found employment, and completed all required aspects of his Treatment Program to date (54). During the JDTP proceedings of March 12, 2013, the JDTP Court indicated that appellant was employed, clean and that he was a “model probationer” (57). During the JDTP proceedings of April 9, 2013, appellant admitted he missed a meeting with his Probation Officer because he was working (60). The JDTP Court (James H. Cecile, A.J.) warned him not to “screw up” his Program by missing meetings (61). During the JDTP proceedings of June 11, 2013, appellant indicated he was employed through Spartan Staffing (64). The JDTP Court acknowledged that appellant was doing well (64). During the JDTP proceedings of July 9, 2013, appellant indicated he was spending time with his eight-year-old son, Caleb (67). The JDTP Court indicated that he was “personally thrilled” for appellant and his progress (68). Appellant was taken into custody following the JDTP proceedings of August 6, 2013 (71). Appellant admitted that he relapsed and used crack cocaine and consumed alcohol (71). 7 During the JDTP proceedings of August 20, 2013, the JDTP Court referred appellant back to an In-Patient Treatment Program (74). Appellant indicated he understood it was his last chance to succeed in the JDTP (74). Appellant failed to appear for JDTP proceedings on September 5, 2013 (77). The JDTP Court stated that appellant tested positive for cocaine again, and issued a warrant for his arrest (77). Appellant appeared before the JDTP Court again on October 22, 2013 (80). During the proceedings, the JDTP Court indicated it wanted to consider its options, and thought appellant might want to complete a Treatment Program through the New York State Department of Correctional Services or “step up” and stop using drugs (81). The JDTP Court asked appellant if he wanted to stop using and “stop being a sociopathic twit” (81). Appellant answered, “I do want to stop using, your Honor” (81). On November 26, 2013, the JDTP Court indicated it would give appellant one last opportunity to avoid prison (84). The JDTP Court recommended appellant to an Out-Patient Treatment Facility (84). The JDTP Court told appellant that it was not his “addiction [that was] keeping him from succeeding,” but rather it was his “crappy character” that was “screwing him up” (84). Appellant indicated that while he was in jail the past 75 days, he completed an anger management class and earned his GED (85). 8 During the JDTP proceedings of December 10, 2013, appellant explained that he failed to appear for his intake, at the Out- Patient Facility, because his Medicaid was not yet in place (89). The JDTP Court indicated that during appellant’s home visit, appellant’s roommate reported that appellant went to the hospital with heart problems (89). The JDTP Court also revealed that appellant passed his drug tests (89). Appellant failed to appear for the JDTP proceedings on January 14, 2014, and, as a result, the JDTP Court issued a warrant for his arrest (93). During the JDTP proceedings of February 13, 2014, the JDTP Court indicated that it was going to hold appellant with no bail and order the preparation of a Pre-Sentence Report (95). Appellant claimed he missed one day of Out-Patient Treatment and one curfew because he was at the hospital (95-96). The JDTP Court told appellant to discuss the matter with his attorney (96). Appellant was sentenced on March 25, 2014 (98). Appellant’s attorney explained that appellant was doing well in the JDTP until he faced problems with his living arrangements, and the custody of his son (100). Appellant told the JDTP Court that he was sorry for his actions and that he was doing the best he could (100). The JDTP Court noted that it read appellant’s letter regarding conflicts with his Probation Officer, but told appellant he could not blame his mistakes on others (101-102). The JDTP Court 9 sentenced appellant to serve, concurrently, one year in the Onondaga County Correctional Facility for the DWI charge and the admission of the violation of his probation, as well as an indeterminate term of imprisonment having a minimum term of two and one-third years, and a maximum term of seven years, for the crime of BURGLARY IN THE THIRD DEGREE (102). The JDTP Court informed appellant there would be a $375 surcharge and a DNA index fee as well as restitution (9, 102-103, 105-106). Appellant filed a Notice of Appeal on March 26, 2014 (7-8). By Memorandum and Order, entered December 23, 2016, the Appellate Division, Fourth Department unanimously affirmed the judgment of conviction (4-5). The Appellate Division held that appellant is not required to preserve any challenge to the validity of the Superior Court Information at the trial court level, and rejected his contentions that his waiver of Indictment was “invalid because there was no colloquy on that subject and no evidence [in] the [R]ecord that his waiver was executed in ‘open court’” (4). The Appellate Division concluded that a colloquy is not required for a waiver of Indictment, and that “‘even when the plea minutes are silent,’ the ‘open court’ execution requirement of [Criminal Procedure Law § 195.20] is satisfied where...the court’s order approving the [I]ndictment waiver ‘expressly found that [appellant] executed the waiver in open court’” (5). 10 By Certificate Granting Leave, entered July 28, 2014, Leave to Appeal to the Court of Appeals was granted by Senior Associate Judge of the Court of Appeals Jenny Rivera (3). Appellant, having successfully completed Parole, currently resides in Auburn, New York. POINT I APPELLANT’S WAIVER OF INDICTMENT WAS NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTERED. As an initial matter, the Appellate Division, Fourth Department, relying on People v. Boston (75 N.Y.2d 585, 589 [1990]), correctly held that appellant is not required to preserve any challenge to the validity of the Superior Court Information at the trial court level (4). The Appellate Division, Fourth Department, however, mechanically applied the statutory language [Criminal Procedure Law § 195.10] without requiring appellant’s waiver of Indictment to be knowing, intelligent, and voluntary (4-5). Pursuant to New York Constitution Article I, § 6, and Criminal Procedure Law Article § 195.10[1] a defendant may waive his right to Indictment when: (a) a local criminal court has held the defendant over for the action of a grand jury; and (b) the defendant is not charged with a class A felony punishable by death or life imprisonment; and (c) the district attorney consents to the waiver. 11 Further, the waiver must contain a statement by the defendant that he is aware that he has the right to be prosecuted by an Indictment filed by a Grand Jury, and that he waives such right (Criminal Procedure Law § 195.20[a-b]). It is also required that the waiver of Indictment be: evidenced in writing; signed by the defendant, in open court, in the presence of his attorney; endorsed by the district attorney; and approved by the trial court (Criminal Procedure Law §§ 195.20, 195.30). Criminal Procedure Law Article 195 does not explicitly state that a defendant’s waiver of Indictment is to be entered knowing, intelligently, and voluntary. Prior to 1974, Article I, § 6 of the New York Constitution did not permit an individual to waive his right to an Indictment (Boston, 75 N.Y.2d at 587-588). In Matter of Simonson v. Cahn (27 N.Y.2d 1, 3 [1970]), this Court recognized that the right to an Indictment by a Grand Jury was a “public fundamental right,” and was not merely a personal privilege of the defendant. The significance being that a “public fundamental right” was binding on the defendant, and thus could not be waived (Matter of Simonson, 27 N.Y.2d at 4). Although this Court ultimately held that it was unconstitutional for a defendant to waive his right to an Indictment by Grand Jury, then Associate Court of Appeals Judge Matthew J. Jasen, dissenting, posited that a defendant did have a personal right to an Indictment, 12 which may be waived by him in the same manner as other personal rights guaranteed by the Fifth and Sixth Amendments of the Federal Constitution and by [the N.Y.] Constitution...It is totally unreasonable to hold that an accused may not knowingly and intelligently waive a rule which was made for his own protection. What harm is there to the accused in such case? After all, the choice of being tried by indictment or information is at all times with the accused, and only he, knowingly and intelligently, may exercise such choice (Matter of Simonson, 27 N.Y.2d at 6-7). Justice Jasen suggests that a defendant’s right to an Indictment is waivable, if it be knowing and intelligent (Matter of Simonson, 27 N.Y.2d at 6-7). A constitutional amendment to New York Constitution Article I, § 6, effective January 1, 1974, permitted that "a person held for the action of a Grand Jury upon a charge for [an infamous] offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney; such waiver shall be evidenced by written instrument signed by the defendant in open court in the presence of his counsel." (Boston, 75 N.Y.2d at 588). Subsequently, in order to facilitate the amendment, the Legislature enacted Criminal Procedure Law Article 195 (Boston, 75 N.Y.2d at 588). The statutory procedures implemented were “aimed at affording a defendant the opportunity for a speedier 13 disposition of charges as well as eliminating unnecessary Grand Jury Procedures” (Boston, 75 N.Y.2d at 589; People v. Banville, 134 A.D.2d 116, 122 [2nd Dept. 1988]). However, such speedier disposition should not diminish the protections afforded a defendant who would have otherwise been prosecuted by an Indictment. Moreover, the requirement that the waiver be evidenced in writing suggests its heightened importance (see People v. Page, 88 N.Y.2d 1, 6 [1996]---"...it is a human habit to think twice before one signs a paper."). Such constitutional amendment and legislative history evidences that the waiver of Indictment must be knowingly, intelligently, and voluntarily entered (New York Constitution Article I, § 6; Boston, 75 N.Y.2d at 589). It is respectfully submitted that appellant’s waiver of Indictment did not meet the requirements of Criminal Procedure Law § 195.20 (11-13, 16-17). The trial court, on July 9, 2012, found that appellant’s waiver of Indictment met the statutory requirements (16). However, the Record does not demonstrate that appellant executed the Waiver of Indictment Form in open court as required by law (11-13, 16-17). The trial court summarily approved the Waiver of Indictment Form, and never inquired whether it was appellant’s signature on the Form, or if it was executed in open court (16- 17). Although, the Waiver of Indictment Form indicates that it 14 was effectuated in “open court,” appellant’s signature was never orally conveyed as transpiring during the actual proceedings, rendering it questionable whether appellant signed the Form on the Record (11-13, 16-17) (Criminal Procedure Law § 195.20). Therefore, it is respectfully submitted that appellant’s waiver of Indictment did not meet the statutory requirements, and as such, the Appellate Division’s determination should be vacated, and the matter remitted for further proceedings (11-13, 16-17) (Criminal Procedure Law § 195.20). It should be noted that this Court has found other rights, which are similar to a defendant’s right to an Indictment, to be waivable so long as that waiver is found to be knowingly, intelligently, and voluntarily entered. One such right is the waiver of the right to trial by jury. New York Constitution Article I, § 2 permits a defendant in a criminal case to waive his right to a trial by jury, except those [cases] in which the crime charged may be punishable by death, by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense. Pursuant to this constitutional provision, the Legislature enacted Criminal Procedure Law Article § 320.10 permitting a defendant in a criminal case to waive a trial by jury where the offense charged is not the crime of murder in the first degree, 15 and where such waiver is in writing, signed by the defendant in open court. Further, the court must approve the execution and submission of such waiver unless it determines...that the defendant is not fully aware of the consequences of the choice he is making. In Page (88 N.Y.2d at 6), this Court underwent an extensive analysis of the foundation of Article I, § 2 of the New York Constitution, and found that the history of the constitutional waiver provision established that the requirement that a defendant execute a signed, written waiver was critical to securing a knowing, intelligent and voluntary waiver of the right to trial by jury. Specifically, the proponents of the amendment at the 1938 Constitutional Convention believed, “that the waiver must be in writing and in court as a protection to the rights of the defendant” (Page, 88 N.Y.2d at 6). Similarly, Criminal Procedure Law § 195.20 requires that a defendant execute a signed, written waiver in open court. Such identical language indicates a legislative intent that the waiver of Indictment need be knowing, intelligent, and voluntary jury (Criminal Procedure Law § 320.10; Criminal Procedure Law § 195.20). Although Criminal Procedure Law Article 320.10 only states that the defendant need be “fully aware of the consequences of the choice he is making,” courts have held that the waiver of 16 right to trial by jury must be knowing, intelligent, and voluntary (Page, 88 N.Y.2d at 6; People v. McQueen, 52 N.Y.2d 1025 [1981]; People v. Davis, 49 N.Y.2d 114 [1979]; People v. Duchin, 12 N.Y.2d 351, 353 [1963]; People v. Wallace, 250 A.D.2d 398 [1st Dept. 1998]; People v. Davidson, 136 A.D.2d 66, 69 [2nd Dept. 1988]; People v. Teatom, 91 A.D.3d 1025 [3rd Dept. 2012]; People v. Members, 100 A.D.3d 1543 [4th Dept. 2012]). The right to a trial by jury is considered “one of the greatest rights” of a citizen (Page, 88 N.Y.2d at 6). Similarly, a Grand Jury proceeding is also considered a fundamental stage in the prosecution which serves to assess the sufficiency of the prosecutor’s case, and insulates the innocent from government overreach (People v. Pelchat, 62 N.Y.2d 97, 104 [1984]). The interrelated purposes of the right to trial by jury, and the right to Grand Jury Indictment, suggest that a waiver of either, should be required to be knowing, intelligent, and voluntary (Page, 88 N.Y.2d at 6; Pelchat, 62 N.Y.2d at 104). In People ex rel. Battista v. Christian (249 N.Y. 314, 319 [1928]), this Court compared the fundamental right to Grand Jury Indictment to trial by jury of twelve. In finding that the right to Grand Jury Indictment was not waivable, this Court compared the foundational constitutional language of each right and determined that it was impermissible for a defendant to waive such rights (People ex rel. Battista, 249 N.Y. at 319). 17 Subsequently, both constitutional provisions have been revised to permit a defendant to waive a right to Grand Jury Indictment and right to trial by jury (New York Constitution Article I, §§ 2, 6). This Court recently held that a right to waive a trial by jury included a defendant’s right to waive a trial by jury of twelve, so long as the waiver was found to be knowing, intelligent, and voluntary (People v. Gajadhar, 9 N.Y.3d 438, 447-448 [2007]). This Court should extend this reasoning to the waiver of the right to Indictment, and require it to be knowing, intelligent, and voluntary (see Gajadhar, 9 N.Y.3d at 447-448). Additionally, it should be noted that although there is no statutory mandate, this Court has held that for a waiver of the right to appeal to be valid, it must reflect an advised and knowing waiver entered into freely and voluntarily (People v. Bradshaw, 18 N.Y.3d 257, 264-266 [2011]; People v. Lopez, 6 N.Y.3d 248, 257 [2006]). It is recommended that a defendant’s waiver be in writing, and it is required that it be knowing, intelligent, and voluntary (Lopez, 6 N.Y.3d at 257). It is not sufficient for a defendant to waive his right to appeal by simply executing a Form (Lopez, 6 N.Y.3d at 257). Where a Form is utilized, it must be used in conjunction with an oral confirmation that the defendant grasps the concept of the appeal waiver, and the nature of the rights he is foregoing (Bradshaw, 18 N.Y.2d at 264; see People v. Ramos, 7 N.Y.3d 737, 738 18 [2006]). Just as this Court would not permit a knowing, intelligent, and voluntary waiver of the right to appeal to be exclusively based on a Form, it should not permit the waiver of Indictment to be exclusively based on a Form (Lopez, 6 N.Y.3d at 257). Moreover, with respect to entering a plea of guilty, there is no statutory requirement that a defendant’s waiver of right against self-incrimination be knowing, intelligent, and voluntary (People v. Sougou, 26 N.Y.3d 1052, 1054 [2015]; People v. Haffiz, 19 N.Y.3d 883, 884 [2012]). This Court has found that it is the constitutional duty of the trial court to ensure that the accused has a full understanding of what the plea connotes and of its consequences (People v. Tyrell, 22 N.Y.3d 359, 365 [2013]). Accordingly, in order to constitute a knowing, intelligent, and voluntary plea, this Court requires there be “an affirmative showing on the [R]ecord” that the defendant waived his constitutional rights (Tyrell, 22 N.Y.3d at 365). It is not permissible to presume waiver of a constitutional right from a silent record, [t]he record must show, or there must be an allegation and evidence which show, that an accused intelligently and understandingly rejected his constitutional rights [] [a]nything less is not a waiver (People v. Harris, 61 N.Y.2d 9, 17 [1983]). 19 Thus, analogous to a waiver of the right against self- incrimination in the course of entering a guilty plea and to ensure protection of a defendant’s constitutional right, this Court should require that a waiver of Grand Jury Indictment be knowing, intelligent, voluntary (Harris, 61 N.Y.2d at 17). This Court should also find that a defendant’s waiver of right to Indictment should be knowing, intelligent and voluntary due to the fundamental rights which are forfeited by such waiver. A defendant has the right to appear, right to fair presentment, and right to counsel at the Grand Jury proceeding (Criminal Procedure Law §§ 190.50[5]; 190.52[1]; Pelchat, 62 N.Y.2d at 104-106; People v. Sawyer, 274 A.D.2d 603, 604 [3rd Dept. 2000]). By forfeiting a Grand Jury proceeding and waiving his right to Indictment, the defendant is also foregoing these fundamental rights. A defendant who has been arraigned on a Felony Complaint charging an offense which is the subject of a Grand Jury proceeding, must be informed that a Grand Jury proceeding against them is pending, in progress or about to occur (Criminal Procedure Law § 190.50[5][a]). Further, a defendant has the right to appear before the Grand Jury as a witness (Criminal Procedure Law § 190.50[5][a]). Therefore, to permit a defendant to forego an Indictment, and Grand Jury presentment altogether, 20 necessitates him forfeiting a proceeding which presents a unique strategic consideration (Pelchat, 62 N.Y.2d at 104-106; Sawyer, 274 A.D.2d at 604). As such, it should be required that this forfeiture be knowing, intelligent, and voluntary (Pelchat, 62 N.Y.2d; Sawyer, 274 A.D.2d at 604). A defendant’s indelible right to counsel attaches at a Grand Jury proceeding (Criminal Procedure Law § 190.52[1]; Sawyer, 274 A.D.2d at 604). A defendant’s Sixth Amendment right to counsel also includes his right to self-representation (Faretta v. California, 422 U.S. 806, 833-834 [1975]). Accordingly, this Court has required that a defendant’s waiver of right to counsel, and to proceed pro-se, be voluntary and intelligent (People v. Smith, 92 N.Y.2d 516, 520 [1998]; see People v. Slaughter, 78 N.Y.2d 485 [1991]; Sawyer, 274 A.D.2d at 604). In order to ascertain whether a waiver meets this standard, this Court has required that the trial court undertake a searching inquiry in order to be reasonably certain that a defendant appreciates the fundamental right to counsel (Slaughter, 78 N.Y.2d at 491; Sawyer, 274 A.D.2d at 21). By waiving an Indictment, a defendant is inherently waiving his right to appear, and right to counsel (Criminal Procedure Law §§ 190.50[5][a], 190.52[1]). Currently, at every additional stage in the prosecution, a defendant is required to knowingly, intelligently, and voluntarily waive his right to counsel 21 (Smith, 92 N.Y.2d at 520). As such, this Court should include a Grand Jury proceeding as a critical stage that necessitates a defendant’s wavier be knowing, intelligent, and voluntary (Smith, 92 N.Y.2d at 520; Slaughter, 78 N.Y.2d at 491). In the instant case, although appellant executed a Waiver of Indictment Form, there is no indication on the Record that the waiver was knowing, intelligent, and voluntary (11-13, 16- 17). At no point did the trial court attempt to determine the extent of appellant’s understanding of the rights he was forfeiting (16-17). The trial court never discussed the consequences of a Waiver of Indictment with appellant or asked him if he understood the terms it contained (11-13, 16-17). Additionally, the Indictment is intended to appraise appellant of the charges against him, including the all the elements of the charge (People v. Iannone, 45 N.Y.2d 589, 594 [1978]). However, the trial court made no attempt to discover whether appellant understood the elements of BURGLARY IN THE THIRD DEGREE before he waived his right to a Grand Jury Indictment (16-17). Although the Waiver of Indictment Form provided appellant with a great deal of information concerning his rights, the trial court did not orally explain such information to appellant, nor did it ask defense counsel if he explained such 22 information to appellant (11-13, 16-17). Specifically, appellant was never orally informed that he was giving up his right to appear before the Grand Jury; his right to attack the evidence that was presented to the Grand Jury; and his right to attack other potential defects in the Grand Jury proceedings (11-13, 16-17). Just as this Court would not permit a knowing, intelligent, and voluntary Waiver of Right to Trial by Jury or Waiver of Right to Appeal to be exclusively based on a Form, it should not permit the Waiver of Indictment to be based strictly on a Form (Gajadhar, 9 N.Y.3d at 447-448; Lopez, 6 N.Y.3d at 257; Page, 88 N.Y.2d at 6). Therefore, it is respectfully submitted that appellant’s Waiver of Indictment did not meet the statutory requirements (16-17), and was not knowingly, intelligently, and voluntarily entered (15-22) (Criminal Procedure Law § 190.20; see Gajadhar, 9 N.Y.3d at 447-448; Lopez, 6 N.Y.3d at 257; Page, 88 N.Y.2d at 6). As such, appellant’s Waiver of Indictment must be vacated, and the matter remitted for further proceedings (11-12) (Gajadhar, 9 N.Y.3d at 447-448; Lopez, 6 N.Y.3d at 257; Page, 88 N.Y.2d at 6). 23 POINT II APPELLANT DID NOT VALIDLY WAIVE HIS RIGHT TO APPEAL. As a preliminary matter, the Appellate Division, Fourth Department correctly held that appellant did not validly waive his right to appeal (4-5) (People v. Bradshaw, 18 N.Y.3d 257, 264-265 [2011]; People v. Callahan, 80 N.Y.2d 273, 283 [1992]). It is well settled that a defendant may waive his right to appeal as part of a plea agreement (see People v. Seaberg, 74 N.Y.2d 1, 7 [1989]). There is no mandatory litany that must be used in order to obtain a valid waiver of appellate rights (People v. Moissett, 76 N.Y.2d 909, 910-911 [1990]). However, for the waiver to be valid the Record must reflect an advised and knowing waiver entered into freely and voluntarily (People v. Bradshaw, 18 N.Y.3d at 264-266; People v. Lopez, 6 N.Y.3d 248, 256 [2006]). As such, the trial court must make certain that a defendant’s understanding of the terms and conditions of a plea agreement is evident on the face of the Record (Lopez, 6 N.Y.3d at 256). The trial court should assess all the relevant factors regarding the waiver including the nature and terms of the agreement, and the age, experience, and background of the accused (Bradshaw, 18 N.Y.3d at 264; Seaberg, 74 N.Y.2d at 11). 24 The Record must establish that the right to appeal is separate and distinct from those rights automatically forfeited upon pleading guilty (Lopez, 6 N.Y.3d at 256). Therefore, the waiver of the right to appeal should not be “lumped in” with the waiver of other rights that are elicited during the guilty plea allocution (People v. Johnson, 109 A.D.3d 1191, 1191 [4th Dept. 2013]). A written waiver is the recommended method (Lopez, 6 N.Y.3d at 257). It must, however, be in conjunction with an oral confirmation that the defendant grasps the concept of the appeal waiver, and the nature of the rights he is foregoing (Bradshaw, 18 N.Y.3d; see People v. Ramos, 7 N.Y.3d 737, 738 [2006]; People v. McCoy, 107 A.D.3d 1454, 1454 [4th Dept. 2013]). When there is “no colloquy between the County Court and defendant regarding the waiver of the right to appeal to ensure that it was knowingly, voluntarily, and intelligently entered” the waiver is invalid (People v. Carno, 101 A.D.3d 1663, 1664 [4th Dept. 2012]). It is respectfully submitted that in the case at bar, appellant did not knowingly, intelligently, and voluntarily waive his right to appeal (15-22) (Bradshaw, 18 N.Y.3d at 259; Seaberg, 74 N.Y.2d at 11). During the plea proceedings, the trial court asked appellant a series of questions, however, none of the questions 25 related to appellant’s right to appeal his conviction (15-22) (Carno, 101 A.D.3d at 1664). There was never a colloquy between the trial court and appellant regarding his waiver of the right to appeal (15-22). More specifically, the trial court never informed appellant he would be unable to appeal his conviction if he pled guilty (15-22). Although appellant executed Waiver of Indictment which contained a provision concerning the waiver of appeal, that standing alone, did not provide sufficient assurance that appellant knowingly, intelligently, and voluntarily waived his right to appeal (11, 15-22) (Carno, 101 A.D.3d at 1664). On July 17, 2012, appellant signed a three-page JDTP Contract (32-34). The Contract stated that “Defendant agrees that there is no right to appeal to any other court a judicial determination by the Syracuse Community Treatment Court Judge of dismissal from the Syracuse Community Treatment Court” (34). However, this provision in the JDTP Court Contract was never discussed with appellant by the JDTP Court, nor was it discussed with appellant prior to him being transferred to JDTP Court (16- 2, 342). Considering the lack of colloquy between appellant and the trial court, appellant could not possibly have understood the nature of the right he was forfeiting (16-22, 32-34). As such, appellant did not knowingly, intelligently, and 26 voluntarily waive his right to appeal (32-34) (Carno, 101 A.D.3d at 1664). It is respectfully submitted that appellant did not validly waive his right to appeal and, as such, this Court should review the issues presented (16-22) (Carno, 101 A.D.3d at 1664). 27 CONCLUSION THE JUDGMENT OF CONVICTION SHOULD BE UNANIMOUSLY REVERSED. Respectfully submitted, /s/JOHN A. CIRANDO D.J. & J.A. CIRANDO, ESQS. Attorneys for Defendant/Appellant 101 South Salina Street Suite 1010 Syracuse, New York 13202 (315) 474-1285 John A. Cirando, Esq. Bradley E. Keem, Esq. Elizabeth deV. Moeller, Esq. Date: November 8, 2017 28 APL-2017-00157 STATE OF NEW YORK COURT OF APPEALS ___________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against STEVEN MYERS, Defendant/Appellant. _____________________________ Onondaga County SCI No. I-2012-0715-1 Appellate Division Docket No. KA-14-01826 _____________________________ CERTIFICATE OF COMPLIANCE Pursuant to 22 NYCRR §500.1 of the Court of Appeals the undersigned counsel hereby certifies that this Brief was prepared on a computer in 12-point Courier New font, double spaced, with a word count of 5,584, as measured by the word- processing system used to prepare this Brief. Dated: November 8, 2017 /s/JOHN A. CIRANDO D.J. & J.A. CIRANDO, ESQS. Attorney for Defendant/Appellant 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285