PEOPLE v. KITT

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The PEOPLE, etc., respondent, v. Zachary KITT, appellant.

Decided: January 30, 2013

MARK C. DILLON, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL and L. PRISCILLA HALL, JJ. Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Murphy, J.), rendered October 29, 2010, convicting him of vehicular assault in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the court's plea allocution was inadequate in several respects. He did not, however, move pursuant to CPL 220.60(3) to withdraw his guilty plea, and nothing on the record either negated an essential element of the crime to which he pleaded guilty or cast significant doubt on his guilt. In as much as the Court of Appeals has held that, in these circumstances, preservation is required, the defendant's claims do not present questions of law for our review (see CPL 470.05[2]; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Adams, 67 A.D.3d 819, 819, 887 N.Y.S.2d 859; cf. People v. Mox, 20 N.Y.3d 936).

Under the circumstances of this case, we decline to review the defendant's claim in the interest of justice, although we of course agree with our dissenting colleague that “plea allocutions should not be taken lightly and should not be performed in a perfunctory manner.” Here, the defendant received a very favorable plea arrangement in the face of strong evidence of his guilt of the various crimes charged in the indictment. There was no question that it was the defendant who caused serious injury to the complainant by the use of his motor vehicle. Moreover, the defendant and his attorney were clearly aware of the strength or weakness of their claim regarding suppression of the breathalyzer results (see People v. Adams, 67 A.D.3d at 819, 887 N.Y.S.2d 859). The defendant was aware that he could proceed to trial and call witnesses on his own behalf, but nevertheless opted to forego exercising that right in exchange for the certainty of a lenient sentence.

I agree with the majority that the defendant's contention challenging the court's plea allocution is unpreserved for appellate review (see CPL 470.05 [2] ). However, I must respectfully dissent because, in my view, this is an appropriate case for this Court to exercise its interest of justice jurisdiction to reach the defendant's meritorious contention (see CPL 470.15 [6] ).

It is well established that “when a criminal defendant waives the fundamental right to trial by jury and pleads guilty, due process requires that the waiver be knowing, voluntary and intelligent” (People v. Hill, 9 N.Y.3d 189, 191, 849 N.Y.S.2d 13, 879 N.E.2d 152, cert denied 553 U.S. 1048, 128 S.Ct. 2430, 171 L.Ed.2d 257; see N.Y. Const, art I, § 6). To this end, a court has the constitutional duty to ensure that a defendant, before pleading guilty, “has a full understanding of what the plea connotes and of its consequences” (Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274; see People v. Vickers, 84 A.D.3d 627, 923 N.Y.S.2d 497).

The plea colloquy in this case was virtually nonexistent. The court failed to advise the defendant that he had a right to a trial by jury, that he had a right to confront the witnesses against him, and that he had a right against compulsory self-incrimination. These are fundamental rights that a defendant must be apprised of, on the record, before pleading guilty (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646). Furthermore, defense counsel's involvement at the plea proceeding was minimal and there is no basis in the record to conclude that the defendant was actually aware of the rights he was surrendering. Under these circumstances, the record does not show that the plea was entered into knowingly, voluntarily, and intelligently and, thus, the plea is invalid.

While the defendant did not preserve his challenge to the voluntariness of his plea (see People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5), in my view, this issue should be reached in the exercise of this Court's interest of justice jurisdiction, since the plea allocution was so “ ‘woefully deficient” ’ (People v. Vickers, 84 A.D.3d at 629, 923 N.Y.S.2d 497, quoting People v. Colon, 42 A.D.3d 411, 411, 840 N.Y.S.2d 579). Where, as here, a court completely fails in its duty to ensure that a defendant is aware of the important rights he or she is waiving by pleading guilty, it cannot be said that a defendant genuinely had a fair opportunity to raise a challenge to the voluntariness of his or her plea (cf. People v. Louree, 8 N.Y.3d 541, 838 N.Y.S.2d 18, 869 N.E.2d 18). This consideration provides a further basis for my conclusion that the exercise of this Court's interest of justice jurisdiction is warranted.

I note that there are nonfrivolous issues to be litigated at trial. The defendant filed a pretrial motion, inter alia, to suppress results from a breathalyzer test on the ground that he had not consented to taking the test. The People asserted that a videotape made at the time of the test proved that the defendant consented to taking the test. The Supreme Court deferred decision on the motion until trial, and noted that the People would have to “lay a proper foundation for the admissibility of the test results prior to the commencement of trial, limited to the issue of the defendant's consent, outside the presence of the jury.” The results of the breathalyzer test are a critical part of the People's case, since the top count of the indictment charged the defendant with vehicular assault in the first degree (see Penal Law § 120.04 [1] ). Moreover, although the defendant has been released from prison, his conviction is still on his record. Therefore, the defendant still has good reason to challenge the admissibility of the breathalyzer test results and to hold the People to their burden of proof at trial.

By pleading guilty, a defendant is giving up important, fundamental rights. As a result, plea allocutions should not be taken lightly and should not be performed in a perfunctory manner. It is the court's responsibility to ensure that a defendant is made aware of his or her important, fundamental rights before pleading guilty.

In sum, I believe that this is an appropriate case for this Court to exercise its interest of justice jurisdiction to reach the defendant's meritorious contention regarding the voluntariness of his plea. Accordingly, on that basis, I respectfully dissent and vote to reverse the judgment.

DILLON, J.P., BALKIN, and LEVENTHAL, JJ., concur.

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