DECISION & ORDER Appeal from an order of the Justice Court of the Town of Southeast, Putnam County (Gregory L. Folchetti, J.), dated December 23, 2018. The order, insofar as appealed from, upon reargument, adhered to a prior determination of that court in an order dated July 2, 2018 granting, without a hearing, defendant’s motion, pursuant to CPL 440.10, to vacate a judgment rendered on August 6, 2008 convicting defendant of driving while intoxicated (common law). PER CURIAM ORDERED that the order, insofar as appealed from, is reversed, on the law, and, upon reargument, defendant’s motion to vacate the judgment of conviction is denied. On March 9, 2008, defendant was issued three simplified traffic informations charging him with, respectively, driving while intoxicated (common law) (Vehicle and Traffic Law §1192 [3]), refusal to submit to a breath test (Vehicle and Traffic Law §1194 [1] [b]) and driving across hazardous roadway markings (Vehicle and Traffic Law §1128 [d]). On August 6, 2008, defense counsel stated on the record that defendant was pleading guilty to violating subsection 7 of Vehicle and Traffic Law §1192, which does not delineate any unlawful act, instead of the correct subsection, 3. Defense counsel, the prosecutor and the court overlooked this error, and, during the plea allocution, defendant admitted to driving while “in an intoxicated condition,” which tracks the language of Vehicle and Traffic Law §1192 (3). It is uncontested that, during defendant’s plea allocution, the court did not inform defendant of the constitutional rights he would be waiving or inquire whether defense counsel had done so (see Boykin v. Alabama, 395 US 238, 243 [1969]; People v. Conceicao, 26 NY3d 375 [2015]; People v. Tyrell, 22 NY3d 359 [2013]). Nearly a decade after his guilty plea, on May 7, 2018, defendant filed a motion pursuant to CPL 440.10 (1) (h) to vacate the judgment of conviction because of this shortcoming. The People opposed defendant’s motion, arguing that, because defendant’s claim revolves about what occurred during his plea colloquy, the transcript of which is part of the court record, defendant could have raised this issue on direct appeal, which he did not do. Further, the People contended, defendant has no justifiable reason for this failing, and so he was statutorily barred from using CPL 440.10 (1) to raise this issue (see CPL 440.10 [2] [c]). The Justice Court, in an order dated July 2, 2018, granted defendant’s motion without a hearing, and vacated the judgment of conviction and the guilty plea. The People moved for leave to reargue their opposition to defendant’s motion, claiming that, in failing to summarily deny defendant’s motion pursuant to CPL 440.10 (2) (c), the court misapprehended the law. The People appeal from so much of an order of the Justice Court dated December 23, 2018 as, upon reargument, adhered to its prior determination. The Justice Court was statutorily barred from considering defendant’s CPL 440.10 (1) (h) motion, as “sufficient facts appear on the record of the proceeding underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the…issue raised upon the motion, [but] no such appellate review or determination occurred owing to the defendant’s unjustifiable failure to take or perfect an appeal” (CPL 440.10 [2] [c]; see People v. Campbell, 148 AD3d 821, 821 [2017] ["The defendant's claim…is based on matter in the record of the direct appeal and should have been raised on direct appeal"]). Defendant’s claim that his failure to take an appeal was justified because he was in no position to dispute the unconstitutionality of his 2008 plea until after the Court of Appeals handed down its Tyrell decision — upon which his CPL 440.10 arguments principally relied — five years later, is without merit. The Tyrell decision simply restated the United States Supreme Court’s Boykin decision, which predated defendant’s plea by almost four decades. Furthermore, New York courts had repeatedly, prior to defendant’s plea, vacated the pleas of defendants whose allocutions did not meet constitutional muster (see e.g. People v. Harris, 61 NY2d 9, 18-19 [1983]; People v. Gibson, 54 AD3d 350, 350 [2008] ["(T)he court failed to apprise the defendant that he was giving up any rights upon entering the plea…. Thus,…the record was not clear that the plea represent(ed) a voluntary and intelligent choice"] [internal quotation marks and citations omitted]; People v. Mollendo, 16 Misc 3d 132[A], 2007 NY Slip Op 51483[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2007] ["It does not affirmatively appear from the record that defendant's guilty plea was voluntarily and understandingly entered. Defendant was not advised by the court of any of the rights she would be waiving by changing her plea to guilty"] [citations omitted]). Defendant’s alternative theory — that his attorney’s statement that defendant would plead guilty to subsection 7, rather than subsection 3, of Vehicle and Traffic Law §1192 served as justification for his decade-long delay in filing a CPL 440.10 motion — is also meritless. This apparent plea of guilty to a nonexistent offense seems to have been either a simple misstatement by defense counsel, or a scrivener’s error in preparing the transcript of the plea colloquy. If it were an attorney misstatement, and defendant wanted to claim that it rendered his plea a nullity, such an argument could have been addressed on direct appeal. Thus, defendant’s failure to take such an appeal remains unjustified and the court’s order violated the clear proscription of CPL 440.10 (2) (c) against addressing the merits of defendant’s motion. Accordingly, the order, insofar as appealed from, is reversed and, upon reargument, defendant’s motion to vacate the judgment of conviction is denied. TOLBERT, J.P., ADAMS and GARGUILO, JJ., concur. Dated: August 27, 2020
