Second, Eleventhand ThirteenthJudicIal DistrictsCases released on:August 2, 2018
By: Aliotta, J.P., Pesce, Weston, JJ.New York City Legal Aid Society (Harold V. Ferguson, Jr. of counsel), for appellant.Richmond County District Attorney (Morrie I. Kleinbart of counsel), for respondent.2016-825 RI CR. PEOPLE v. CAPPIELLO, KIMBERLY — Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Barbara I. Panepinto, J.), rendered March 13, 2016. The judgment convicted defendant, upon her plea of guilty, of petit larceny and imposed sentence.ORDERED that the judgment of conviction is affirmed.Defendant, while represented by counsel, pleaded guilty to petit larceny (Penal Law §155.25), as charged, and was sentenced to 20 days’ incarceration in the same proceeding. On appeal, defendant contends that her guilty plea should be vacated since she did not enter it knowingly and voluntarily.“Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea…or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10″ (People v. Peque, 22 NY3d 168, 182 [2013] [internal citations omitted]; see also People v. Conceicao, 26 NY3d 375 [2015]). However, the Court of Appeals has recognized a narrow exception to the preservation requirement where the particular circumstances of a case reveal that a defendant had no actual or practical ability to object to an alleged error in the taking of a plea that was clear from the face of the record (see People v. Williams, 27 NY3d 212 [2016]; People v. Conceicao, 26 NY3d 375; People v. Louree, 8 NY3d 541, 546 [2007]). Here, since defendant was sentenced in the proceeding in which she entered her plea of guilty, she “faced a practical inability to move to withdraw [her] plea” (People v. Conceicao, 26 NY3d at 382). Therefore, defendant’s claim is reviewable on direct appeal despite the fact that she did not move to withdraw her plea or vacate the judgment of conviction (see People v. Sougou, 26 NY3d 1052 [2015]).Trial courts have “a vital responsibility” to ensure that a defendant who pleads guilty makes a knowing, voluntary and intelligent choice among alternative courses of action (People v. Harris, 61 NY2d 9, 19 [1983]). They need not engage in any particular litany, however, as the Court of Appeals has “repeatedly rejected a formalistic approach to guilty pleas and [has] steered clear of a uniform mandatory catechism of pleading defendants” (People v. Tyrell, 22 NY3d 359, 365 [2013] [internal quotation marks omitted]). In fact, the Court of Appeals has rejected the requirement that a court must enumerate all of the rights waived during the course of the plea allocution (see People v. Sougou, 26 NY3d 1052). Instead, the Court has opted for a flexible rule that considers “all of the relevant circumstances surrounding” a plea (People v. Harris, 61 NY2d at 19 [emphasis removed]; see People v. Conceicao, 26 NY3d 375). Therefore, so long as the record as a whole “affirmatively disclose[s] that a defendant who pleaded guilty entered his plea understandingly and voluntarily,” the plea will be upheld (People v. Harris, 61 NY2d at 19; see also People v. Conceicao, 26 NY3d 375; People v. Tyrell, 22 NY3d at 366). Here, the record reveals that defendant had extensive prior contacts with the criminal justice system, including prior convictions, and her attorney stated on the record that he had advised her of her rights. Thus, upon our “review of the record as a whole and the circumstances of the plea in its totality” (see People v. Sougou, 26 NY3d at 1055), we find that there was an affirmative showing that defendant entered her plea knowingly, voluntarily and intelligently, and that she understood the consequences of her plea (see People v. Conceicao, 26 NY3d at 375; People v. White, 51 Misc 3d 138[A], 2016 NY Slip Op 50590[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; cf. People v. Sabino, 51 Misc 3d 142[A], 2016 NY Slip Op 50675[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).Accordingly, the judgment of conviction is affirmed.ALIOTTA, J.P., and PESCE, J., concur.
