The People, Respondent,v.Stephen Pellegrino, Appellant.BriefN.Y.October 20, 2015Blaine (Fin) V. Fogg President Seymour W. James, Jr. Attorney–in–Chief Criminal Appeals Bureau 199 Water Street New York, NY 10038 Tel: 212-577-3688 www.legal-aid.org February 2, 2015 Honorable Jonathan Lippman Chief Judge Court of Appeals Court of Appeals Hall Eagle Street Albany, New York 12207 Attn: Hon. Andrew W. Klein Re: People v. Stephen Pellegrino APL - 2015 – 00012 Your Honor: This constitutes appellant’s submission pursuant to Rule 500.11 of this Court’s Rules of Practice in accordance with the Clerk’s letter dated January 14, 2015. In People v. Tyrell, 22 N.Y.3d 359 (2013), this Court held that because the defendant’s claims were reviewable on direct appeal and the records were silent as to his waiver of Boykin rights, his guilty pleas must be vacated. Because the present case is indistinguishable from Tyrell, appellant’s plea must likewise be vacated and the complaint dismissed. The Facts Appellant was charged in a felony complaint, later reduced to a misdemeanor complaint, dated February 19, 2011, with promoting prostitution in the fourth degree, P.L. § 230.20. On February 24, 2011, appellant appeared before the court. The court did not advise appellant about any of his Boykin rights that he was waiving by pleading guilty, nor is there anything in the record to suggest that Page 2 appellant discussed these rights with his attorney. Nor did appellant make a factual allocution to the crime. The following colloquy occurred: [THE PROSECUTOR]: Your Honor, there also has not been any grand jury action. The People’s offer is an A misdemeanor, promoting prostitution in the fourth degree, [P.L. §] 230.20 with a $250 fine or five days’ community service. [DEFENSE COUNSEL]: Your Honor, I have conferred on this matter with my client over the past two days, he will plead guilty to the misdemeanor and will be requesting the fine . . . . [THE PROSECUTOR]: The People are moving to reduce the sole count of the complaint to 230.20, promoting prostitution in the fourth degree and the reason for this reduction is . . . the defendant’s lack of a criminal record. THE COURT: Have you informed your client of any potential immigration consequences this plea may have? [DEFENSE COUNSEL]: He is a U.S. citizen, so we don’t need to. THE COURT: Do you waive prosecution? [DEFENSE COUNSEL]: Yes. THE COURT: And time to pay the fine and surcharge? [DEFENSE COUNSEL]: We are requesting that, yes. THE COURT: Mr. Pellegrino, your attorney tells me you want to plead guilty to violating Penal Law Section 230.20, that is promoting prostitution in the fourth degree, it is a misdemeanor and it will add to your criminal record. Is that what you want to do? [APPELLANT]: Yes, your Honor. Page 3 THE COURT: Are you pleading guilty of your own free will? [APPELLANT]: Yes. THE COURT: Are you pleading guilty because you are guilty of the charge? [APPELLANT]: Yes, your Honor. THE COURT: And is there anything you want to say before sentence is imposed? [APPELLANT]: No, your Honor. THE COURT: Sentence of the Court is a $250 fine. There is also a $200 mandatory surcharge. You must pay that amount on or before April 2, 2011 at the Cashier’s Part of this courthouse. (Plea and sentence minutes, p. 2-4). There was no further colloquy concerning either the plea or sentence. Nor did appellant allocate to the facts of the case. The Appellate Term Decision Appellant appealed to the Appellate Term, First Department, and argued that the record was insufficient to show that his plea was knowing and voluntary since he was never informed about his Boykin rights and there was nothing in the record to suggest that he ever discussed these rights with his attorney. Appellant also argued that he never made a factual allocution to the crime. On June 9, 2014, the Appellate Term affirmed the judgment, stating as follows: Under the particular circumstances of this case, we find the record sufficient to establish defendant’s understanding and waiver of his Boykin rights (see Boykin v. Alabama, 395 US 238 [1969]; People v. Tyrell, 22 N.Y.3d 359, 366 [2013], and of his entry of an otherwise knowing and voluntary guilty plea. Page 4 * * * Approximately one week after his arrest defendant, with counsel at his side, pleaded guilty to a reduced misdemeanor charge of fourth-degree promoting prostitution (Penal Law § 230.20) in return for a negotiated sentence of a $250 fine, which he paid. The plea minutes reflect that defendant personally confirmed that he was pleading guilty of his own free will and because in fact he was guilty of the reduced charge. Further, defense counsel, in announcing defendant’s willingness to accept the People’s favorable plea offer, indicated that he (counsel) had “conferred on this matter with [defendant] over the past two days.” Thus, the record showed that defendant “clearly understood the nature of the charges to which he was pleading and willingly entered his plea to obtain the benefit of the bargain he had struck” (People v. Goldstein, 12 N.Y.3d 295, 301 [2009]), and had “ample opportunity to review his options in consultation with counsel” (People v. Perez, 116 AD3d 511, _ [1st Dept. 2014]; see People v. Jackson, 114 AD3d 807 [2d Dept. 2014]).1 Argument The present case is indistinguishable from People v. Tyrell, 22 N.Y.2d 359 (2013). Just as in Tyrell, here too appellant’s Boykin claims are reviewable on direct appeal since he had no opportunity to withdraw his guilty plea prior to sentencing and the facts concerning the issue are clear from the face of the record. Moreover, just as in Tyrell, here too the record did not demonstrate that appellant was apprised of the constitutional rights that he was waiving by pleading guilty, and there is nothing in the record to suggest that he ever discussed these rights with counsel. Accordingly, this 1 On October 30, 2014, in People v. Perez, this Court granted appellant leave to appeal, and the appeal is currently pending. Page 5 Court should vacate the plea and dismiss the complaint. U.S. Const., Amend. XIV; N.Y. Const., Art. I, § 6; People v. Tyrell, 22 N.Y.3d 359 (2013). Due process requires that a guilty plea be knowing, intelligent and voluntary. Boykin v. Alabama, 395 U.S. 239, 243 (1969); People v. Tyrell, 22 N.Y.3d at 36; People v. Lopez, 71 N.Y.2d 662 (1988); People v. Harris, 61 N.Y.2d 9, 17 (1983). Voluntariness should be determined by considering all the relevant circumstances. Brady v. United States, 397 U.S. 742, 749 (1970). In Boykin v. Alabama, 395 U.S. at 242-43, the United States Supreme Court held that when a defendant opts to plead guilty, he must voluntarily and intelligently waive several federal constitutional rights. Those rights, known as Boykin rights, include 1) the privilege against compulsory self- incrimination, 2) the right to a jury trial and 3) the right to confront one’s accusers. Id.; People v. Tyrell, 22 N.Y.3d at 365; People v. Harris, 61 N.Y.2d at 17. When the record of a conviction obtained by a guilty plea contains no evidence that a defendant knows of the rights he was putatively waiving, the conviction must be reversed, regardless of whether the defendant would have pled guilty had the record been adequate. United States v. Dominguez Benitez, 542 U.S. 74, 84, note 10 (2004); People v. Tyrell, 22 N.Y.3d at 366. The trial court must produce a record affirmatively showing that a defendant’s guilty plea was knowing, intelligent and voluntary. See Bordenkircher v. Hayes, 435 U.S. 357, 362 (1978); Boykin v. Alabama, 395 U.S. at 242; People v. Tyrell, 22 N.Y.3d at 365-66; Hanson v. Phillips, 442 F.3d 789 (2d Cir. 2006). Although this Court has declined to require that trial judges ritually recite all the constitutional rights waived upon a guilty plea, it has recognized that judges have a “vital responsibility ‘to make sure [that the accused] had full understanding of what the plea connotes and of its consequences.’” People v. Harris, 61 N.Y.2d at 18; People v. Tyrell, 22 N.Y.3d at 365-66. In order to constitute a knowing, intelligent and voluntary plea, there must be “an affirmative showing on the record” that a defendant waived his constitutional rights. People v. Tyrell, 22 N.Y.3d at 365; People v. Fiumefreddo, 82 N.Y.2d 536, 543 (1993); People v. Harris, 61 N.Y.2d at 17; Boykin v. Alabama, 395 U.S. at 242. A record that is silent will not overcome the presumption against waiver. People v. Tyrell, 22 N.Y.3d at Page 6 365; People v. Harris, 61 N.Y.2d at 17; Hanson v. Phillips, 442 F.3d at 800. As this Court stated in Tyrell: Succinctly put: ‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused intelligently and understandingly rejected his constitutional rights. Anything less is not a waiver.’ Here, as a threshold matter, appellant’s plea sufficiency issue is properly before this Court. In People v. Tyrell, this court held that Tyrell’s case either fell within the parameters of its precedents regarding the applicability of a preservation requirement in People v. Lopez, 71 N.Y.2d at 666 and People v. Louree, 8 N.Y.3d 541 (2007), or was a mode of proceedings error. People v. Tyrell, 22 N.Y.3d at 364. In Lopez, this Court held that generally “in order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea under C.P.L. § 220.60(3) or a motion to vacate the judgment under C.P.L. § 440.10. 71 N.Y.2d at 666. Here, as in Tyrell, neither option was available to appellant. First, appellant pled guilty and was sentenced at the same proceeding. Hence, appellant had no opportunity to move to withdraw his guilty plea prior to sentencing. See People v. Tyrell, 22 N.Y.3d at 364 (acknowledging the actual or practical unavailability of a plea withdrawal motion pursuant to C.P.L. § 220.60(3) where the plea and sentence occurred during the same proceeding). Nor could appellant properly have moved to vacate his conviction under C.P.L. § 440.10 since the facts concerning the issue were clear from the face of the record. Id., People v. Louree, 8 N.Y.3d at 545. Thus, appellant’s Boykin issue is “clearly reviewable on direct appeal.” People v. Tyrell, 22 N.Y.3d at 364. Turning to the merits of this case, this Court should then determine that the Appellate Term erred when it held that the record was sufficient to establish that appellant understandingly waived his constitutional rights when he pled guilty. Here, at his plea and sentence, no one apprised appellant of the constitutional rights he was waiving by pleading guilty. Just like the defendant in Tyrell, appellant was not advised of the rights he was waiving, nor was there any discussion between the court and appellant about these rights at the plea allocution. See People v. Tyrell, 22 N.Y.3d at 366; People v. Vargas, 61 N.Y.2d at 22. Nor is there any evidence that appellant spoke with his attorney Page 7 regarding the constitutional consequences of taking a guilty plea. People v. Tyrell, 22 N.Y.3d at 366. Although there was no record discussion of appellant’s Boykin rights, the Appellate Term held that appellant’s statements that he was pleading guilty of his own free will, that he was in fact, guilty as charged, and that he had conferred with counsel “over the past two days” about his plea supported its holding that the record was sufficient to establish appellant’s understanding and waiver of his Boykin rights. Likewise, the People argued - - in a letter dated August 14, 2014, to Chief Judge Lippman, in opposition to appellant’s leave application - - that “it is inconceivable” that “if defense counsel conferred with defendant about the plea for two days” that counsel did not “also discuss the trial rights he would be waiving by accepting the plea offer.” The Appellate Term’s holding and the People’s argument are simply wrong, as they are based on nothing more than speculation. Just as in Tyrell, here there is “a complete absence of discussion of any of the pertinent constitutional rights; none are addressed by the Court, defense counsel or defendant.” 22 N.Y.3d at 366. Likewise, as in Tyrell, here there is no “indication that defendant spoke with his attorney regarding the constitutional consequences of the plea.” Id. Tyrell cannot be more clear that a consultation with counsel by itself is insufficient, and does not establish that counsel and the defendant spoke about “constitutional consequences of the plea.” Moreover, the Appellate Term’s and the People’s reasoning would mean that it is counsel’s obligation, not the court’s, to create a record that the defendant “intelligently and understandingly rejected his constitutional rights.” This goes directly against Tyrell’s mandate that there must be a record showing of a defendant’s waiver, that “presuming waiver from a silent record is impermissible” and that “anything less is not a waiver” People v. Tyrell, 22 N.Y.3d at 365-66. Also, the other factors relied upon by the Appellate Term in reaching its decision in this case - - i.e. that appellant “personally confirmed that he was pleading guilty of his own free will and because he was in fact guilty of the reduced charge,” do not, in fact, demonstrate, as Tyrell requires, that appellant “intelligently and understandingly rejected his constitutional rights.” People v. Tyrell, 22 N.Y.3d at 365-66. See People v. Serrano, 45 Misc.3d 69, 72 (App. Term, 2nd Dept. 2014) (defendant’s statement that he was pleading guilty “of his own free will was not an indication that defendant was aware of or understood the constitutional rights he was waiving by Page 8 pleading guilty”); People v. Brown, 122 A.D.3d 133, 141 (2d Dept. 2014) (trial court cannot “defer to off-the record conversations with defense counsel” to establish defendant’s understanding of the waiver of the right to appeal; “contrary to Court of Appeals’ instruction that it is the responsibility of the trial court to ‘at least satisfy itself on the record that the waiver complies with the . . . safeguards expressed” in Court of Appeals’ precedents). In this case, the trial court did not advise appellant of any of the direct consequences of his guilty plea - - the waiver of his right to a trial, his right to confront witnesses against him and the right against compulsory self- incrimination. Moreover, there is nothing in the record to demonstrate that appellant understood his rights before his guilty plea was entered. Thus, just as in Tyrell, this Court should now hold that appellant’s guilty plea was not knowing, intelligent and voluntary because the record as a whole does not contain an affirmative demonstration of appellant’s waiver of his affirmative constitutional rights. See People v. Tyrell, 22 N.Y.3d at 366. As a result, this Court should now reverse the Appellate Term’s decision, reverse appellant’s conviction and vacate his guilty plea. In remedying the defective proceedings, since appellant has completed service of his sentence and a minor offense is involved, this Court should dismiss the charges in the interest of justice. Courts have not hesitated to dismiss charges in the interest of justice in appellate cases such as this one, where the proceedings were flawed, the defendant has completed his sentence, and a minor offense was involved. People v. Moore, 24 N.Y.3d 1030, 1031-32 (2014); People v. Tyrell. 22 N.Y.3d at 366; People v. Flynn, 79 N.Y.2d 879 (1992); People v. Burwell, 53 N.Y.2d 849, 851 (1981).2 Respectfully submitted, Joanne Legano Ross Associate Appellate Counsel (212) 577-3624 2 In People v. Moore, 24 N.Y.3d 1030, 1031-32 (2014), the New York County District Attorney’s office conceded - - in a case identical to the present case - - “that under Tyrell defendant’s plea must be vacated and as defendant has completed his sentence, remittal is unnecessary” citing People v. Tyrell 22 N.Y.3d at 366. Page 9 cc: Yuval Simchi-Levi, Esq. Assistant District Attorney New York County One Hogan Place New York, New York 10013