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This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

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No. 207 SSM 24

The People &c.,

 Respondent,

 v.

Mactar Sougou, 

 Appellant.

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No. 208 SSM 25

The People &c.,

 Respondent,

 v.

Rita Thompson, 

 Appellant.

Case No. 207 SSM 24:

Submitted by Harold V. Ferguson, Jr., for appellant.

Submitted by Alan Gadlin, for respondent.

Case No. 208 SSM 25:

Submitted by Harold V. Ferguson, Jr., for appellant.

Submitted by Manu Balachandran, for respondent.

Memorandum:

The orders of the Appellate Term should be affirmed. 

In each of these appeals defendants contend that their

respective plea allocutions were insufficient as a matter of law

to establish that they pled guilty knowingly and intelligently

(see Boykin v Alabama, 395 US 238, 243 [1969]; People v Harris,

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- 2 - SSM Nos. 24 and 25

61 NY2d 9, 18 [1983]). We disagree and conclude that in each

case, the plea proceeding manifests a constitutionally adequate

waiver.

As a preliminary matter, we reject the People's 

contention that defendants' claims are unpreserved and find

People v Tyrell (22 NY3d 359 [2013]) dispositive on this issue. 

As in Tyrell, both defendants pled guilty and were sentenced at

the same proceeding, and the errors were clear from the face of

record. As a consequence, preservation poses no bar to our

review of defendants' challenge to their guilty pleas (id. at

364).

Turning to the merits, we begin with the established

constitutional principle that a guilty plea must be "entered

voluntarily, knowingly and intelligently" (People v Haffiz, 19

NY3d 883, 884 [2012]; see Tyrell, 22 NY3d at 365; People v

Harris, 61 NY2d 9, 17-18 [1983]). A valid plea encompasses a

waiver of the right to trial by jury, the privilege against

compulsory self-incrimination, and the right to confront one's

accusers (Boykin, 395 US at 243; Harris, 61 NY2d at 18). 

However, this Court has rejected the requirement that the trial

judge must enumerate all the rights waived during the course of

the plea allocution (Harris, 61 NY2d at 18; Tyrell, 22 NY3d at

365). Nevertheless, "the Trial Judge has a vital responsibility

'to make sure [that the accused] has full understanding of what

the plea connotes and of its consequences' " (Harris, 61 NY2d at

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- 3 - SSM Nos. 24 and 25

19, citing Boykin, 395 US at 244). Of course, a trial judge may

discharge this duty by direct inquiry of the defendant, but, as

we recognized in Tyrell, a valid waiver can be established "where

the record shows that the defendant consulted with [defendant's]

attorney about the constitutional consequences of a guilty plea"

(22 NY3d at 365, citing N. Carolina v Alford, 400 US 25, 40 n 3

[1970], and Hanson v Phillips, 442 F3d 789, 801 [2d Cir 2006]).

A court determining the voluntariness of a waiver must

review the record as a whole and the circumstances of the plea in

its totality (Harris, 61 NY2d at 19). Indeed, " 'the

voluntariness of [a] plea can be determined only by considering

all of the relevant circumstances surrounding it' " (Harris, 61

NY2d at 19, quoting Brady v United States, 397 US 742, 749

[1970]). Here, the records in the instant appeals demonstrate

that defendants' pleas were "knowing, voluntary and intelligent"

and constitute valid waivers of their constitutional rights. 

In Sougou, defendant pled guilty to unlicensed general

vending (New York City Administrative Code § 20-453), a

misdemeanor. The court sentenced defendant to a conditional

discharge, with three days of community service, and required

that he not be arrested for one year, or risk 90 days' jail time

as an alternative sentence.

During the plea, defense counsel stated initially that

defendant authorized him to enter a guilty plea for violating

section 20.453, and that he had discussed with defendant that any

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- 4 - SSM Nos. 24 and 25

arrests during the conditional discharge period would place

defendant at risk of arrest and 90 days' jail time. The judge

then directly addressed defendant and asked specifically whether

defendant had discussed the plea and the sentence, as described

in open court, with his lawyer; whether defendant was pleading

voluntarily and of his own free will; and whether defendant

understood that he was giving up his right to a trial and to

hearings on the search and seizure evidence. Defendant answered

"yes" to each and every question. The record thus affirmatively

demonstrates that defendant understood the consequences of his

plea, including that he was waiving his right to trial and to

challenge evidence against him, and that he discussed both the

plea and his sentence with counsel. Therefore, defendant's

challenge to the voluntariness of the plea is without merit (see

Harris, 61 NY2d at 20-21 [holding that waivers in People v Ramsey

and People v Alicea were valid where the judges advised the

defendants of their right to trial, discussed the plea

consequences with defendant, and defendant affirmed that the plea

was voluntary]).

In Thompson, defendant pleaded guilty to harassment in

the second degree (Penal Law § 240.26), a violation, and the

court sentenced her to time served and imposed a two-year order

of protection. At the plea proceeding, counsel stated that she

was authorized to enter a plea of guilty on defendant's behalf to

harassment in the second degree. The judge addressed defendant

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and asked whether she wanted to enter a plea of guilty to

harassment, a violation and not a crime, and whether she

understood that by pleading guilty she was giving up her right to

trial. Defendant responded affirmatively to the court's

inquiries, and also stated that no one had forced her to enter

the plea.

Based on our review of the record, we conclude that the

court's inquiry and defendant's responses establish that

defendant waived her right to trial and fully comprehended the

plea. Indeed, defense counsel emphasized "to be very clear for"

defendant, that the plea was to "a violation not a crime. It will

not add to her criminal record." Defendant thus understood that

by pleading guilty she avoided any further enhancement of her

existing criminal record. Granted, the plea proceeding was

succinct, but, unlike Tyrell, the record was not silent, and the

substance of the plea colloquy is at least equivalent to that of

the pleas this Court upheld in People v Ramsey and People v

Alicea, two of the cases decided along with Harris (61 NY2d at 

20-21).

* * * * * * * * * * * * * * * * *

For Each Case: On review of submissions pursuant to section

500.11 of the Rules, order affirmed, in a memorandum. Chief

Judge Lippman and Judges Pigott, Rivera, Abdus-Salaam, Stein and

Fahey concur.

Decided November 24, 2015

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