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ALTHOUGH DEFECTS IN GUILTY PLEA NOT PRESERVED BY A MOTION, PLEA VACATED IN THE INTEREST OF JUSTICE BECAUSE JUDGE DID NOT ENSURE DEFENDANT UNDERSTOOD THE CONSTITUTIONAL RIGHTS HE WAS GIVING UP.

The Third Department determined defendant’s waiver of appeal was inadequate and there was no assurance defendant understood the constitutional rights waived by his guilty plea. The plea was vacated, in the interest of justice, on that ground:

Although defendant’s challenge to the plea was not preserved through an appropriate postallocution motion … , we exercise our interest of justice jurisdiction to reverse the judgment … . “While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights” … .

Here, County Court made no effort to explain the consequences of a guilty plea, making only a passing reference to them by asking defendant if anyone was forcing him to give up his “right[] to [a] jury trial” … . The court further failed to establish that defendant had consulted with his counsel about the trial-related rights that he was forfeiting by pleading guilty or the constitutional consequences of a guilty plea, “instead making a vague inquiry into whether defendant had spoken to defense counsel” … or had any questions of his counsel regarding his “rights,” “the plea bargain, the trial and anything else that [was] important to [him]” … . With no affirmative showing on the record that defendant understood and waived his constitutional rights when he entered the guilty plea, the plea was invalid and must be vacated … . People v Herbert, 2017 NY Slip Op 01408, 3rd Dept 2-23-17

CRIMINAL LAW (ALTHOUGH DEFECTS IN GUILTY PLEA NOT PRESERVED BY A MOTION, PLEA VACATED IN THE INTEREST OF JUSTICE BECAUSE JUDGE DID NOT ENSURE DEFENDANT UNDERSTOOD THE CONSTITUTIONAL RIGHTS HE WAS GIVING UP)/GUILTY PLEA (ALTHOUGH DEFECTS IN GUILTY PLEA NOT PRESERVED BY A MOTION, PLEA VACATED IN THE INTEREST OF JUSTICE BECAUSE JUDGE DID NOT ENSURE DEFENDANT UNDERSTOOD THE CONSTITUTIONAL RIGHTS HE WAS GIVING UP)

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