People v. Cotto, 2017 NY Slip Op 8759 (N.Y. App. Div. 2017). · Go Syfert
People v. Cotto, 2017 NY Slip Op 8759 (N.Y. App. Div. 2017). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases · …the right to testify yourself or call your own witnesses. at p. 1064 ⚠ not in text
21 citation events (21 in the last 25 years) across 1 distinct court.
Strongest positive: People v. Oliver (nyappdiv, 2020-07-02)
Treatment trajectory · 2018 → 2026 · click a year to view as-of
2018 2022 2026
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Oliver
N.Y. App. Div. · 2020 · confidence medium
The court, however, failed to mention the privilege against self-incrimination or ascertain whether defendant conferred with counsel regarding the trial-related rights that he was waiving and the constitutional consequences of entering a guilty plea ( see People v Demkovich , 168 AD3d 1221 , 1222 [2019]; People v Holmes , 162 AD3d 1117 , 1118 [2018]; People v Cotto , 156 AD3d 1063, 1064 [2017]; compare People v Edwards , 181 AD3d at 1056-1057 ).
discussed Cited as authority (rule) People v. Oliver
N.Y. App. Div. · 2020 · confidence medium
The court, however, failed to mention the privilege against self-incrimination or ascertain whether defendant conferred with counsel regarding the trial-related rights that he was waiving and the constitutional consequences of entering a guilty plea ( see People v Demkovich , 168 AD3d 1221 , 1222 [2019]; People v Holmes , 162 AD3d 1117 , 1118 [2018]; People v Cotto , 156 AD3d 1063, 1064 [2017]; compare People v Edwards , 181 AD3d at 1056-1057).
discussed Cited as authority (rule) People v. Glover (2×)
N.Y. App. Div. · 2019 · confidence medium
In a notably brief plea colloquy, County Court advised defendant that, by pleading guilty, she would forever relinquish "the right to go to trial, the right to testify, to call witnesses, [and to] cross-examine the People's witness[es]." There was no discussion of the privilege against self-incrimination or the right to be tried by a jury, nor was there any inquiry into whether defendant had conferred with counsel and understood the constitutional rights that she was automatically waiving by pleading guilty ( see People v Demkovich , 168 AD3d 1221 , 1221-1222 [2019]; People v Holmes , 162 AD3d…
discussed Cited as authority (rule) People v. Demkovich
N.Y. App. Div. · 2019 · confidence medium
Although trial courts are not required to adhere to a rigid script or formula prior to accepting a defendant's guilty plea, the record must affirmatively demonstrate that the defendant waived his or her constitutional trial-related rights — namely, the privilege against self-incrimination, the right to a jury trial and the right to be confronted by witnesses ( see People v Tyrell , 22 NY3d 359, 365 [2013]; People v Cotto , 156 AD3d 1063, 1064 [2017]; People v Lowe , 133 AD3d 1099, 1100 [2015]).
discussed Cited as authority (rule) People v. Glover (2×)
N.Y. App. Div. · 2019 · confidence medium
Our review of the plea colloquy reveals that County Court engaged in an extremely limited exchange with defendant, advising her only that, by pleading guilty, she would forever relinquish her "right to go to trial, the right to testify, to call witnesses, [and to] cross-examine the People's witness[es]." Critically, there was no discussion of the privilege against self-incrimination, the right to be tried by a jury or whether defendant had conferred with counsel and understood the constitutional rights that she was automatically waiving by pleading guilty ( see People v Demkovich , slip op at …
discussed Cited as authority (rule) People v. Simon
N.Y. App. Div. · 2018 · confidence medium
We nonetheless exercise our interest of justice jurisdiction to take corrective action and reverse the judgment ( see CPL 470.15 [3] [c]; People v Holmes , 162 AD3d 1117 , 1118 [2018]; People v Cotto , 156 AD3d 1063, 1063-1064 [2017]).
discussed Cited as authority (rule) People v. Mallard
N.Y. App. Div. · 2018 · confidence medium
Although defendant also executed a terse written waiver, such waiver was executed after defendant was sentenced ( see People v Thompson , 157 AD3d 1141 , 1141 [2018]), and the court failed to ascertain whether defendant had read the waiver, understood its contents and/or had discussed the ramifications thereof with counsel ( see People v Cotto , 156 AD3d 1063, 1063 [2017]; People v Metayeo , 155 AD3d 1239, 1240 [2017]; People v Ortiz , 153 AD3d 1049, 1049 [2017]).
discussed Cited as authority (rule) People v. Wilson
N.Y. App. Div. · 2018 · confidence medium
Furthermore, while defendant signed a written waiver explaining the "separate and distinct" nature of the right to appeal, the record does not reflect an inquiry as to whether he had read and understood it ( People v Cotto , 156 AD3d 1063, 1063 [2017]; see People v Lemon , 137 AD3d at 1423 ).
discussed Cited as authority (rule) People v. Holmes
N.Y. App. Div. · 2018 · confidence medium
Although defendant did not preserve this claim through an appropriate postallocution motion ( see People v Conceicao , 26 NY3d 375, 382 [2015]; People v Herbert , 147 AD3d 1208, 1210 [2017]), we find that the error warrants reversal of the judgment of conviction in the interest of justice ( see People v Schmitz , 159 AD3d 1222 , 1223 [2018]; People v Cotto , 156 AD3d 1063, 1064 [2017]).
discussed Cited as authority (rule) People v. Warren
N.Y. App. Div. · 2018 · confidence medium
While the record contains a signed written waiver of appeal, there is no mention of it on the record and the circumstances under which it was signed are not reflected ( see People v Cotto , 156 AD3d 1063, 1063 [2017]; cf. People v Lester , 141 AD3d 951, 953 [2016], lv denied 28 NY3d 1185 [2017]).
discussed Cited "see" People v. Simpson
N.Y. App. Div. · 2021 · signal: see · confidence high
The record also fails to disclose that the court "obtain[ed] any assurance that defendant had discussed with counsel the trial-related rights that are automatically forfeited by pleading guilty or the constitutional implications of a guilty plea" ( People v Demkovich , 168 AD3d at 1222; see People v Cotto , 156 AD3d 1063, 1064 [2017]; People v Lowe , 133 AD3d 1099, 1101 [2015]).
discussed Cited "see" People v. Haenelt
N.Y. App. Div. · 2018 · signal: accord · confidence high
Further, although defendant executed a written waiver, County Court did not "ensure that defendant understood the content or consequences of the appeal waiver" ( People v Williams , 132 AD3d 1155, 1155 [2015], lv denied 27 NY3d 1157 [2016]; accord People v Cotto , 156 AD3d 1063, 1063 [2017]).
Retrieving the full opinion text from the archive…
The People of the State of New York, Respondent,
v.
Wilfredo Cotto Jr., Appellant
108509.
Appellate Division of the Supreme Court of the State of New York.
Dec 14, 2017.
2017 NY Slip Op 8759
McCarthy, Rose, Devine, Mulvey, Rumsey.
Cited by 12 opinions  |  Published
McCarthy, J.P.

Appeal from a judgment of the County Court of Madison County (McDermott, J.), rendered March 9, 2016, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.

Defendant was charged with burglary in the third degree (two counts), grand larceny in the third degree and grand larceny in the fourth degree. He thereafter pleaded guilty to one count of burglary in the third degree in full satisfaction of the charges and purportedly waived his right to appeal. County Court sentenced defendant, as a second felony offender, to 2 to 4 years in prison, and defendant now appeals.

Initially, we agree with defendant that his waiver of the right to appeal was invalid. Although defendant executed a written waiver, County Court did not discuss the waiver with defendant or even verify with him that he signed it, and the written waiver did not convey that the right to appeal is separate and distinct from the rights automatically forfeited upon a guilty plea (see People v Mones, 130 AD3d 1244, 1245 [2015]). In short, the court failed “to ensure that defendant understood the content or consequences of the appeal waiver” (People v Williams, 132 AD3d 1155, 1155 [2015], lv denied 27 NY3d 1157 [2016]; accord People v Gonzalez, 138 AD3d 1353, 1354 [2016]).

Defendant also argues that his plea was not knowing, intelligent and voluntary because County Court failed to advise him of the constitutional rights he was waiving by pleading guilty. Although this argument was not preserved for our review through an appropriate postallocution motion, we exercise our interest of justice jurisdiction to take corrective action and reverse the judgment (see CPL 470.15 [3] [c]; People v Klinger, 129 AD3d 1115, 1116 [2015]).

“When a defendant opts to plead guilty, he [or she] must waive certain constitutional rights—the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses” (People v Tyrell, 22 NY3d 359, 365 [2013], citing Boykin v Alabama, 395 US 238, 243 [1969]). “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” (People v Lowe, 133 AD3d 1099, 1100 [2015] [internal quotation marks, brackets and citations omitted]; see People v Tyrell, 22 NY3d at 365; People v Herbert, 147 AD3d 1208, 1210 [2017]). The Court of Appeals has made clear that the trial judge has the responsibility to ensure that the defendant fully understands the plea and its consequences (see People v Sougou, 26 NY3d 1052, 1054-1055 [2015]). During the plea colloquy, County Court did not reference the privilege against self-incrimination or the right to be confronted by witnesses and, although defendant was advised of his right to a trial, the court did not specify a jury trial. “We cannot conclude that defendant’s guilty plea was knowing, voluntary and intelligent as there was neither an affirmative showing on the record that defendant waived his constitutional rights nor any indication that he consulted with his attorney about the constitutional consequences of a guilty plea” (People v Vences, 125 AD3d 1050, 1051 [2015] [internal quotation marks and citations omitted]; see People v Herbert, 147 AD3d at 1210; People v Lowe, 133 AD3d at 1100-1101).

Rose, Devine, Mulvey and Rumsey, JJ., concur.

Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and matter remitted to the County Court of Madison County for further proceedings not inconsistent with this Court’s decision.