AD1 order dated March 12, 2015, reversing judgment of

conviction, after a guilty plea, for DUI. Decision below: 126

AD3d 482, 6 NYS3d 25. Stein, J., granted leave to People May

13, 2015. Argued October 20, 2015.

ISSUE PRESENTED: Whether the guilty plea was knowing and

voluntary (People v. Tyrell, 22 NY3d 359), despite the absence

of any Boykin rights or an effective allocution, where the plea was

to a misdemeanor, not a petty offense. (Assigned counsel for

respondent: Seymour James, Jr., Legal Aid Society, Criminal

Appeals Bureau, 199 Water Street, NYC 10038.)

Issue:

Whether the plea-taking court’s failure to recite the Boykin rights automatically invalidates an otherwise knowing and voluntary plea.

 

Held:

No.  If the record as a whole affirmatively shows that the defendant intentionally relinquished the Boykin rights, the plea is valid.  

 

CAL Observes:

In Perez and Sanchez, the pleas were upheld.  In Conceicao, the plea was struck down.  All involved misdemeanors.

On the plus side, the Court held that the defendants’ claims are reviewable on direct appeal notwithstanding the lack of a motion to withdraw the plea, since there was a practical inability to make such a motion; the plea and sentence took place at the same proceeding.

 

As to the merits, in Perez and Sanchez the tenor of the recorded proceedings suggested that the defendant understood his rights.   In Conceicao, however, all that appeared on the record prior to imposition of sentence was the defendant’s statement that he wished to plead guilty - - nothing else.  Under the circumstances, there is nothing to suggest that defendant even discussed the plea with his attorney.  Unlike the defendant in the Tyrell case, here the People did not concede that dismissal was the appropriate corrective action; the Court thus remitted the case for further proceedings, even though it was an A misdemeanor and the defendant had fully served his sentence of two days of community service.  Good luck with that, People.

 

Judge Lippman, writing separately, concurred in Conceicao but dissented in the other two cases.  He noted that upholding the two sloppily-obtained pleas “perpetuates what has been in practice a standardless jurisprudence,” contravenes Boykin, and is “a recipe for the toleration of slipshod practice and deficient pleas, particularly in busy courts handling non-felony cases.”  He added, “[i]t is time to end rather than encourage such pleas.”  This is in counterpoint to Judge Pigott’s observation during oral argument that, when he was a lawyer practicing in such courts, well, that was how things were done.

 

Judge Rivera, who joined Judge Lippman’s concurrence in Conceicao, wrote separately to dissent.  The Court’s ruling regarding preservation was too limited, and Conceicao’s accusatory instrument should have been dismissed.  

 

We observe that, while practice in the lower trial-level courts in (at least) New York City varies judge-by-judge, it is possible to sit in some courtrooms all day and observe not one plea which would meet constitutional standards even under this trilogy.  And nothing is done, and no one other than Judges Lippman and Rivera seems to care.