PEOPLE v. ROBBINS (2006)

Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.), rendered February 14, 2005, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the second degree.

Pursuant to a negotiated plea agreement, defendant pleaded guilty to criminal possession of a controlled substance in the second degree, the first count of a five-count indictment against him.   In connection with the plea, defendant waived his right to appeal.   County Court advised defendant of the rights that he was relinquishing as a part of this particular plea bargain, then delegated responsibility for conducting the plea allocution to defense counsel, informing defendant, without obtaining a waiver of the right to counsel, that counsel was “no longer representing you in the sense of protecting you.”   Defense counsel then conducted the factual portion of the plea allocution.   Thereafter, County Court sentenced defendant to eight years in prison followed by five years of postrelease supervision in accordance with the plea agreement.   Defendant now appeals, arguing that his plea was not voluntary and that he was denied the effective assistance of counsel.

 Defendant's allegations regarding the right to counsel at the plea proceeding implicate the voluntariness of his plea and, thus, they are not precluded by his waiver of the right to appeal (see People v. Wright, 21 A.D.3d 583, 583-584, 799 N.Y.S.2d 336 [2005], lvs. denied 5 N.Y.3d 857, 806 N.Y.S.2d 177, 840 N.E.2d 146 [2005], 6 N.Y.3d 820, 812 N.Y.S.2d 460, 845 N.E.2d 1291 [2006];  People v. Bethea, 19 A.D.3d 813, 814, 797 N.Y.S.2d 158 [2005] ).   Moreover, while defendant failed to move to withdraw his plea or vacate the judgment of conviction (see People v. Grant, 294 A.D.2d 671, 672, 742 N.Y.S.2d 695 [2002], lv. denied 98 N.Y.2d 730, 749 N.Y.S.2d 480, 779 N.E.2d 191 [2002];  People v. Goodings, 277 A.D.2d 725, 725, 716 N.Y.S.2d 481 [2000], lv. denied 96 N.Y.2d 735, 722 N.Y.S.2d 801, 745 N.E.2d 1024 [2001] ), “a violation of the right to counsel may be reviewed in the absence of an objection” (People v. Dean, 47 N.Y.2d 967, 968, 419 N.Y.S.2d 957, 393 N.E.2d 1030 [1979];  cf. People v. Montanez, 287 A.D.2d 407, 408, 731 N.Y.S.2d 721 [2001], lv. denied 97 N.Y.2d 685, 738 N.Y.S.2d 301, 764 N.E.2d 405 [2001] ).

 Although “[t]he fact that [an] attorney participates in the plea allocution does not ․ necessarily constitute reversible error” when the allocution is performed under the court's supervision and the right to counsel is adequately safeguarded (People v. Empey, 141 A.D.2d 987, 988, 531 N.Y.S.2d 37 [1988];  see People v. Nixon, 21 N.Y.2d 338, 350, 287 N.Y.S.2d 659, 234 N.E.2d 687 [1967], cert. denied 393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed.2d 709 [1969];  People v. Skinner, 284 A.D.2d 906, 907, 726 N.Y.S.2d 193 [2001];  People v. Sanchez, 284 A.D.2d 137, 137, 725 N.Y.S.2d 548 [2001], lv. denied 96 N.Y.2d 942, 733 N.Y.S.2d 382, 759 N.E.2d 381 [2001] ), we have long criticized the practice of courts delegating the duty to conduct the plea allocution (see People v. Bonneau, 142 A.D.2d 890, 890-891, 531 N.Y.S.2d 391 [1988], lv. denied 73 N.Y.2d 889, 538 N.Y.S.2d 801, 535 N.E.2d 1341 [1989];  People v. Maye, 129 A.D.2d 204, 205-206, 517 N.Y.S.2d 330 [1987] ).   Moreover, here, County Court announced that not only did it intend to delegate the allocution in its entirety with respect to the factual basis of the plea but also that, at its urging, counsel would take a position adverse to defendant during a critical stage of the proceedings (see generally People v. Settles, 46 N.Y.2d 154, 165-166, 412 N.Y.S.2d 874, 385 N.E.2d 612 [1978];  People v. Lewis, 286 A.D.2d 934, 935, 731 N.Y.S.2d 305 [2001];  People v. Santana, 156 A.D.2d 736, 737, 550 N.Y.S.2d 356 [1989], lv. denied 79 N.Y.2d 863, 580 N.Y.S.2d 735, 588 N.E.2d 770 [1992] ).   Under these circumstances, we agree with defendant that his plea was rendered involuntary and, thus, reversal is required.

ORDERED that the judgment is reversed, on the law, guilty plea vacated and matter remitted to the County Court of Tioga County for further proceedings not inconsistent with this Court's decision.

MERCURE, J.

CARDONA, P.J., SPAIN, CARPINELLO and MUGGLIN, JJ., concur.