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COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT.

The Third Department, vacating defendant’s guilty plea in the interest of justice, determined the judge did not adequately ensure defendant was aware of the rights he was giving up:

Defendant … contends that his guilty plea to criminal sale of a controlled substance in the third degree and violating his probation was not knowing, voluntary and intelligent because County Court failed to inform him of the constitutional rights he was waiving by pleading guilty. Although this contention is unpreserved for our review, inasmuch as he failed to make an appropriate postallocution motion … , we find that the error warrants reversal of the judgment in the interest of justice … .

“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”… . During the plea allocution, County Court merely asked whether defendant understood “what the attorneys have told me about you waiving your rights and entering pleas of guilty to a felony, violation of probation and all of that stuff” and whether defendant had “[a]ny questions at all regarding you giving up your rights to a jury trial, your rights to presumption of innocence, your rights to a violation of probation hearing, anything like that.” County Court further failed to ascertain whether defendant had discussed with counsel the trial-related rights being waiving by a guilty plea or its constitutional consequences. Rather, County Court simply inquired whether defendant “[had] the time, and did you talk to [counsel] regarding this case, the disposition, and anything else that is important to you, with respect to these charges” … . Additionally, County Court did not advise defendant of his rights or the consequences regarding an admission to violating probation … , including that he understood that he was entitled to a hearing on the issue and that he was waiving that right … . “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 Aubain, 2017 NY Slip Op 05632, 3rd Dept 7-13-17

CRIMINAL LAW (COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)/APPEALS (INTEREST OF JUSTICE JURISDICTION, COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)/GUILTY PLEA (COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)

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EMAIL FROM ATTORNEY CONSTITUTED A BINDING SETTLEMENT AGREEMENT, SUPREME COURT... DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION,...