Harold V. Ferguson, Jr., for appellant.
Ryan Gee, for respondent.
In Boykin v Alabama (395 U.S. 238 ), the United States Supreme Court held that a defendant who enters a guilty plea must voluntarily and intelligently waive several federal constitutional rights, namely, the right to a trial by jury, the right to confront one's accusers and the privilege against self-incrimination. Because the records in the cases before us are silent as to defendant's waiver of these fundamental rights, the pleas must be vacated.
In the first of two appeals involving defendant Cavell Craig Tyrell (County Index No. 570026/10), a police officer observed defendant and another person sell a small quantity of marihuana to two individuals in February 2009. The officer immediately stopped all four participants, recovering money and a small bag of marihuana from defendant, and another bag of marihuana from one of the buyers. Defendant was charged by misdemeanor complaint with criminal sale of marihuana in the fourth degree (Penal Law § 221.40) and criminal possession of marihuana in the fifth degree (Penal Law § 221.10 ).
Defendant appeared for arraignment, with counsel, two days after his arrest. The prosecutor offered a sentence of time served in exchange for a guilty plea. In response, defense counsel queried whether a "marijuana ACD" (adjournment in contemplation of dismissal) was available. The prosecutor answered in the negative. Defense counsel then stated that "[w]e have a disposition. At this time [defendant] authorizes me to withdraw his previously entered plea of not guilty and enter a plea of guilty to Penal Law Section 221.10, criminal possession of marijuana in the fifth degree." The colloquy concluded with the court's imposition of the sentence: "Time served. Enter judgment."
Defendant appealed from the judgment of conviction and sentence, seeking vacatur of his plea on the basis that it was not voluntary, knowing and intelligent. Specifically, he asserted that the plea was invalid because the record did not affirmatively demonstrate the waiver of his Boykin rights.
The Appellate Term affirmed (37 Misc.3d 16 [App Term, 1st Dept 2012]), reasoning that defendant failed to preserve his Boykin claim for appellate review by not bringing a postallocution motion to withdraw the plea. As an "alternative holding, " the court found that the plea colloquy evinced a voluntary, knowing and intelligent plea. A Judge of this Court granted defendant leave to appeal (19 N.Y.3d 1105 ), and we now reverse.
In the second case (County Index No. 570027/10), the same defendant was arrested in October 2009 following his participation in a buy-and-bust operation involving the sale of marihuana to an undercover officer. As a result, defendant was charged in a misdemeanor complaint with criminal sale of marihuana in the fourth degree (Penal Law § 221.40).
Later that same day, defendant appeared with counsel for arraignment. At the outset of the proceeding, the prosecutor offered defendant a sentence of 15 days in jail in exchange for a guilty plea to the crime charged. Defendant, through counsel, refused the offer. After a discussion regarding potential bail terms, defense counsel informed the court that defendant would be willing to plead guilty for time served. The court rejected the request, but offered a jail sentence of 10 days. Defense counsel responded that defendant was willing to accept that offer. Defendant then stated that he agreed to plead guilty and acknowledged his participation in the drug sale. The court accepted defendant's plea and immediately imposed the 10-day jail sentence.
Defendant appealed from the judgment of conviction and sentence, arguing that his plea must be vacated because it was not entered voluntarily, knowingly and intelligently. As in the first case, he urged that the waiver of his Boykin rights was nonexistent.
Affirming the conviction (36 Misc.3d 133[A], 2012 NY Slip Op 51309[U] [App Term, 1st Dept 2012]), the Appellate Term concluded that defendant's claim was unpreserved because he did not file a CPL 220.60 (3) motion to withdraw or a CPL 440.10 motion to vacate. Alternatively, the court reviewed the plea minutes and determined that the plea ...