Opinion
2019-1713 N CR
11-19-2020
The PEOPLE of the State of New York, Respondent, v. Jose S. CUBAS-ESCOTO, Appellant.
Thomas R. Villecco, for appellant. Nassau County District Attorney (Kevin C. King and Monica M. C. Leiter of counsel), for respondent.
Thomas R. Villecco, for appellant.
Nassau County District Attorney (Kevin C. King and Monica M. C. Leiter of counsel), for respondent.
PRESENT: JERRY GARGUILO, J.P., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ.
ORDERED that the judgment of conviction is reversed, on the law, defendant's guilty plea is vacated, the accusatory instrument is reinstated, and the matter is remitted to the District Court for all further proceedings.
Defendant was initially charged with menacing in the second degree ( Penal Law § 120.14 [1] ). It was alleged in the accusatory instrument that defendant threatened to kill his female coworker while displaying a knife and making a stabbing motion. Following plea negotiations, defendant pleaded guilty to menacing in the third degree ( Penal Law § 120.15 ), and was immediately sentenced to 40 days' incarceration with a final two-year order of protection. Defendant has completed his sentence.
On appeal, defendant contends, among other things, that the record fails to affirmatively demonstrate his understanding, or waiver, of his constitutional rights.
Initially, we note that defendant's claim is reviewable on direct appeal, despite the fact that he did not preserve it by moving to withdraw his plea pursuant to CPL 220.60 (3), or to vacate the judgment of conviction pursuant to CPL 440.10, as his plea and sentence took place at the same proceeding (see People v. Conceicao , 26 NY3d 375, 381-382 [2015] ; People v. Tyrell , 22 NY3d 359, 364 [2013] ; People v. Peque , 22 NY3d 168, 182 [2013] ; see also NY Const, art VI, § 3 [a]; CPL 470.05 [2] ).
"A guilty plea is not invalid solely because the trial court failed to recite a defendant's constitutional rights under Boykin v. Alabama " ( People v. Pellegrino , 26 NY3d 1063, 1063 [2015] ). However, the record as a whole, must affirmatively demonstrate that defendant knowingly, intelligently and voluntarily waived those rights (see Conceicao , 26 NY3d at 383 ). Here, the record is devoid of any discussion of the pertinent constitutional rights (see Boykin v. Alabama , 395 US 238 [1969] ). While "a valid waiver could be established where the record shows that the defendant consulted with his attorney about the constitutional consequences of a guilty plea" ( People v. Tyrell , 22 NY3d at 365 ), here, defense counsel merely stated that she "advised [defendant] of his options and his rights including the right to go to trial." The record is therefore ambiguous and provides no affirmative indication that counsel spoke to defendant about the constitutional consequences of taking the plea before doing so, or that defendant understood the rights he was waiving (see People v. Constable , 62 Misc 3d 138[A], 2019 NY Slip Op. 50047[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v. Crawford , 55 Misc 3d 150[A], 2017 NY Slip Op. 50731[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; cf. People v. Lopez , 65 Misc 3d 156[A], 2019 NY Slip Op. 51960[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019] ). As the People correctly concede, the judgment of conviction must be reversed because the District Court never referenced the constitutional trial rights that defendant was forfeiting (see People v. Conceicao , 26 NY3d at 384 ; People v. Tyrell , 22 NY3d at 363-366 ), and the plea vacated (see People v. Andino , 50 Misc 3d 133[A], 2016 NY Slip Op. 50030[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016] ).
Based on the foregoing, we need not reach defendant's alternative contention. We note, however, that, despite knowing that defendant is not a United States citizen, the District Court did not advise defendant of the deportation consequences of his guilty plea, nor was defendant served, in open court, with a Notice of Immigration Consequences form (cf. People v. Delorbe , 35 NY3d 112 [2020] ).
Finally, despite defendant's request to dismiss the accusatory instrument, under the circumstances of this case, where defendant was initially charged with menacing his female co-worker with a knife, which charge was reduced for the specific purpose of entering into a plea agreement, it cannot be said that, upon the reversal of the judgment of conviction, no penological purpose would be served by remitting the matter for all further proceedings (see e.g. People v. Famiglietti , 65 Misc 3d 151[A], 2019 NY Slip Op. 51876[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v. Rivera , 55 Misc 3d 141[A], 2017 NY Slip Op. 50592[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017] ).
Accordingly, the judgment of conviction is reversed, defendant's guilty plea is vacated, the accusatory instrument is reinstated, and the matter is remitted to the District Court for all further proceedings.
GARGUILO, J.P., RUDERMAN and EMERSON, JJ., concur.