People v. Tyrell

Smith, J.

(dissenting). In People v Nixon (21 NY2d 338, 355 [1967]), we renounced what we referred to as “the catechism system” for taking guilty pleas. We held that “[i]t should never be enough to undo a plea because of some omission in inquiry at the time of plea without a showing of prejudice” (id.). We reaffirmed the Nixon holding in People v Harris (61 NY2d 9, 16-19 [1983]), saying that we did not read Boykin v Alabama (395 US 238 [1969]) to require a “ritualistic recitation of the rights waived upon a guilty plea.” Later, in People v Lopez (71 NY2d 662, 665 [1988]), we held that “in order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea”; we made an exception only for the “rare case” where the record of the allocution “clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea” and where the trial court has not eliminated that doubt by further inquiry (id. at 666).

Under Nixon, Harris and Lopez, the mere omission of a recital from the allocution does not lead automatically to the nullification of a guilty plea. There must be a showing, either on the record of the plea proceeding itself or in a motion to withdraw the plea, that it was not in fact knowingly, voluntarily and intelligently entered.

To date, our principal departure from the Nixon/Harris/Lopez approach has been in People v Catu (4 NY3d 242, 245 [2005]), in which we held that “the failure of a court to advise of post-release supervision requires reversal of the conviction,” regardless of whether defendant was prejudiced by the omission. I joined the Catu decision, and I do not suggest that we can or should overrule it. But it set us on a long and troubled journey that I would not, if I had the choice to make over, embark on again (see e.g. People v Hill, 9 NY3d 189 [2007]; People v Sparber, 10 NY3d 457 [2008]; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358 [2008]; People v Williams, 14 NY3d 198 [2010]; People v Lingle, 16 NY3d 621 [2011]; People v Pignataro, 22 NY3d 381 [decided Dec. 12, 2013]).

I now fear that we may be making a similar mistake. The majority seems to hold that at least some of the so-called “Boykin rights” must be recited in a plea allocution, and that if they are not the defendant is entitled to plea withdrawal, regardless of whether he was prejudiced by the omission or whether he has made a motion to withdraw his plea. I do not know how many *368pleas will be put in jeopardy by this holding. Not many, I hope, because the recital of Boykin rights is customary, but, as these cases show, the custom is not always observed, especially where the case is a relatively minor one. Today’s holding, especially if it is rigidly applied, has the potential to do real harm to the efficient administration of justice by invalidating freely-entered guilty pleas that result in entirely fair plea agreements.

And it is hard for me to imagine that today’s holding will do any real good. I agree that the practice of reciting the Boykin rights on the record is well-advised, but its chief advantage lies in preventing false claims of the “if I had only known” variety by defendants who later change their minds about their pleas. Has any defendant ever really been misled into pleading guilty by a failure to recite the Boykin litany? I have never heard of a plea allocution in which a defendant, told, for example, that he is waiving his right to trial by jury, responded by saying: “Oh, I didn’t know that, and now that I know it I’m not pleading guilty.”

I find it most unlikely that this defendant was hoodwinked into pleading guilty by ignorance of his Boykin rights. He had a lawyer at each of the plea proceedings. I have quoted before (People v Mox, 20 NY3d 936, 940-941 [2012, Smith, J., dissenting]), and now quote again, the wise words of Judge Breitel in Nixon (21 NY2d at 354):

“[I]f independent and good advice in the interest of the defendant is the goal, it is more important that he consult with competent counsel than that a harried, calendar-conscious Judge be the one to perform the function in displacement of the lawyer.”

There is nothing in the record of these two cases to suggest that defendant’s counsel were not competent, or that defendant had no opportunity to consult with them before accepting a sentence of time served in one case, and 10 days in the other. The judgments entered on defendant’s pleas should be affirmed.

Chief Judge Lippman and Judges Read and Rivera concur with Judge Graffeo; Judge Smith dissents and votes to affirm in an opinion in which Judge Pigott concurs; Judge AbdusSalaam taking no part.

In each case: Order reversed, defendant’s guilty plea vacated and complaint dismissed.