State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 16, 2015 105753 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

ADAM MONES,

Appellant.

________________________________

Calendar Date: April 23, 2015

Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.; 

 Rose, J., vouched in.

__________

John Ferrara, Monticello, for appellant.

James R. Farrell, District Attorney, Monticello (Katy

Schlichtman of counsel), for respondent.

__________

McCarthy, J.P.

Appeal from a judgment of the County Court of Sullivan

County (LaBuda, J.), rendered April 12, 2012, (1) convicting

defendant upon his plea of guilty of the crime of burglary in the

second degree and of violating probation, and (2) which revoked

defendant's probation and imposed a sentence of imprisonment.

Pursuant to a negotiated agreement that included a waiver

of appeal, defendant pleaded guilty to a superior court

information charging him with burglary in the second degree and

admitted to violating probation. He was sentenced in accordance

therewith to an aggregate prison term of 81⁄2 years to be followed

by five years of postrelease supervision. Defendant now appeals. 

Because defendant's guilty plea was not knowing, voluntary and
-2- 105753 

intelligent, we reverse. 

Initially, we find that defendant's waiver of his right to

appeal was not valid. During the plea colloquy, County Court

failed to "adequately convey 'that the right to appeal is

separate and distinct from those rights automatically forfeited

upon a plea of guilty'" (People v Vences, 125 AD3d 1050, 1051

[2015], quoting People v Lopez, 6 NY3d 248, 256 [2006]; see

People v Bradshaw, 18 NY3d 257, 264 [2011]). A written waiver

executed by defendant the same day as the plea colloquy suffers

from the same deficiency and, in any event, "there was 'no

attempt by the court to ascertain on the record an acknowledgment

from defendant that he had, in fact, signed the waiver or that,

if he had, he was aware of its contents'" (People v Vences, 125

AD3d at 1051-1052, quoting People v Callahan, 80 NY2d 273, 283

[1992]).

Turning to defendant's guilty plea, County Court also

failed to properly inform defendant of his trial rights. 

Although defendant failed to advance this issue via an

appropriate postallocution motion, the Court of Appeals has

suggested that a trial court's failure to properly inform a

defendant as to his trial rights during a plea colloquy "could

. . . be viewed as a mode of proceedings error for which

preservation is not required" (People v Tyrell, 22 NY3d 359, 364

[2013]). In any event, we exercise this Court's interest of

justice jurisdiction to reverse the judgment (see People v

Klinger, ___ AD3d ___, ___, 10 NYS3d 366, 367 [2015]; People v

Vences, 125 AD3d at 1051 n 1). We recognize that a trial judge

is not required to "specifically enumerate all the rights to

which the defendant was entitled [or] to elicit . . . detailed

waivers before accepting [a] guilty plea" (People v Tyrell, 22

NY3d at 365 [internal quotation marks and citation omitted]), and

there is no "uniform mandatory catechism of pleading defendants"

(People v Alexander, 19 NY3d 203, 219 [2012] [internal quotation

marks and citation omitted]). However, there must be "'an

affirmative showing on the record' that the defendant waived his

[or her] constitutional rights" (People v Tyrell, 22 NY3d at 365,

quoting People v Fiumefreddo, 82 NY2d 536, 543 [1993]; see People

v Moore, 24 NY3d 1030, 1031 [2014]). 
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Here, the plea colloquy took place over a two-day period. 

On the first day, after the prosecutor recited the plea terms,

County Court informed defendant that he would be "giving up [his]

rights to proceed to a trial [and] to appeal." Defense counsel

then requested additional time to speak with defendant, and the

case was adjourned until the following morning. However, when

the proceedings resumed, there was no affirmative indication that

defendant had actually "consulted with his attorney" or that any

such consultation during the adjournment was "about the

constitutional consequences of a guilty plea" (People v Tyrell,

22 NY3d at 365 [emphasis added]; see People v Vences, 125 AD3d at

1051; compare People v Ocasio-Rosario, 120 AD3d 1463, 1464

[2014]). Instead, the prosecutor again recited the plea terms

and County Court simply asked defendant if anyone was forcing him

to give up "those rights." Defendant responded in the negative

and the court then stated, "Trial rights, grand jury right,

appellate rights, et cetera?" to which defendant again replied

"no." No explanation of the aforementioned rights or the

consequences of defendant's waiver was provided. Because

"[p]resuming waiver from a silent record is impermissible"

(Boykin v Alabama, 395 US 238, 242 [1969] [internal quotation

marks and citation omitted]; see People v Tyrell, 22 NY3d at 365-

366), and this record is silent as to whether defendant was

informed of the constitutional trial rights that he was giving

up, there is insufficient evidence to establish an adequate

waiver of such rights (see People v Tyrell, 22 NY3d at 365-366;

People v Klinger, 10 NYS3d at 368; People v Vences, 125 AD3d at

1051). In light of the foregoing, defendant's remaining

contentions are academic.

Rose and Clark, JJ., concur.

Devine, J. (dissenting).

We agree with our colleagues that defendant did not execute

a valid waiver of his right to appeal. Because we are persuaded

that the plea itself was entered into in a knowing, voluntary and

intelligent manner, however, we dissent.
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County Court was indeed obliged to advise defendant of the

rights that he would be forgoing by his guilty plea, including

"the privilege against self-incrimination and the rights to a

jury trial and to be confronted by witnesses" (People v Tyrell,

22 NY3d 359, 365 [2013], citing Boykin v Alabama, 395 US 238, 243

[1969]; see People v Vences, 125 AD3d 1050, 1051 [2015]). In

that regard, a trial court is not required "to specifically

enumerate all the rights to which the defendant was entitled [or]

to elicit . . . detailed waivers before accepting [a] guilty

plea" (People v Tyrell, 22 NY3d at 365 [internal quotation marks

and citations omitted]), nor is there "a uniform mandatory

catechism of pleading defendants" (People v Alexander, 19 NY3d

203, 219 [2012] [internal quotation marks and citation omitted]). 

It is accordingly well settled "that a detailed articulation and

waiver of the three rights mentioned in Boykin [are] not

constitutionally mandated" (People v Harris, 61 NY2d 9, 19

[1983]). There must, however, be some "'affirmative showing on

the record' that the defendant waived his [or her] constitutional

rights" (People v Tyrell, 22 NY3d at 365, quoting People v

Fiumefreddo, 82 NY2d 536, 543 [1993]; see People v Moore, 24 NY3d

1030, 1031 [2014]). 

Contrary to the conclusion of our colleagues, this is not a

case where the record evinces "a complete absence of discussion

of any of the pertinent constitutional rights . . . . by the

court, defense counsel or defendant" (People v Tyrell, 22 NY3d at

366; compare People v Moore, 24 NY3d at 1031). County Court

asked defendant during the plea colloquy if he had adequately

conferred with defense counsel on whether to move forward with a

trial and probation violation hearing. Defendant confirmed that

he had, and agreed that he had no questions of defense counsel

"regarding . . . giving up [his] rights to proceed to a trial"

(compare People v Klinger, AD3d , , 10 NYS3d 366, 368

[2015]). Defense counsel requested additional time to speak to

defendant, and County Court adjourned the case until the next

morning. The plea colloquy was concluded then and, given the

parties' interactions the prior day, was less than comprehensive. 

County Court again confirmed, however, that defendant was not

being forced to give up his trial rights and had no further

questions of defense counsel regarding "giving up [his] rights." 
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There is no question that a further explanation by County

Court as to the trial rights that defendant was forfeiting by

pleading guilty would have been welcome. Defendant nevertheless

acknowledged on the record that he had no questions of defense

counsel regarding the nature of the trial rights that he was

giving up, they conferred overnight, and defendant reiterated the

next day that he had no questions of defense counsel regarding

the forfeiture of his rights. Absent any indication that defense

counsel rendered ineffective assistance or otherwise failed to

discuss the nature of the trial rights that defendant was

expected to forfeit, we have no difficulty discerning from this

record that "defendant consulted with his attorney about the

constitutional consequences of a guilty plea" and knowingly

accepted those consequences (People v Tyrell, 22 NY3d at 365; see

People v Harris, 61 NY2d at 19-20; People v Ocasio-Rosario, 120

AD3d 1463, 1464 [2014]; compare People v Klinger, 10 NYS3d at

368).

Egan Jr., J., concurs.

ORDERED that the judgment is reversed, as a matter of

discretion in the interest of justice, and matter remitted to the

County Court of Sullivan County for further proceedings not

inconsistent with this Court's decision. 

ENTER:

Robert D. Mayberger

Clerk of the Court