The People v. Kenneth Moore

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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 230 SSM 19
The People &c.,
Respondent,
v.
Kenneth Moore,
Appellant.
Submitted by Kristina Schwarz, for appellant.
Submitted by Yuval Simchi-Levi, for respondent.
MEMORANDUM:
The order of the Appellate Term should be reversed,
defendant's guilty plea vacated and the accusatory instrument
dismissed. Defendant was charged with four counts of criminal
possession of a controlled substance in the seventh degree (Penal
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Law § 220.03). At arraignment, there was a brief discussion
between defense counsel, the assistant district attorney and the
court concerning the terms of a disposition, which then lead to
defendant's plea and sentencing on the controlled substance
counts. The court did not address defendant and defendant did
not speak; nor was defendant advised of any constitutional rights
he was waiving. Defendant now claims his constitutional rights
were violated because the record fails to establish his plea was
knowing, voluntary and intelligent.
In People v Tyrell, we held that "[p]resuming waiver
from a silent record is impermissible. The record must show, or
there must be an allegation and evidence which show, that an
accused intelligently and understandingly rejected his
constitutional rights. Anything less is not waiver" (22 NY3d 359,
365-66 [2013] [citation and quotation marks omitted]). The
People concede that under Tyrell defendant's plea must be vacated
and, as defendant has completed his sentence, remittal is
unnecessary (see id. at 366).
* * * * * * * * * * * * * * * * *
On review of submissions pursuant to section 500.11 of the Rules,
order reversed, plea vacated and the accusatory instrument
dismissed, in a memorandum. Chief Judge Lippman and Judges
Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.
Decided October 23, 2014
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