Legal Aid Victory In Tyrell Appeal Has Major Implications In Plea Bargains; Potential For Dismissal Or Reversal In Hundreds Of Cases

In a Legal Aid Society case with major implications for the way Criminal Courts take pleas, the New York Court of Appeals, by a vote of 4-2, has vacated two unrelated pleas by the same client, Cavell Craig Tyrell. Harold Ferguson, a Staff Attorney in The Legal Aid Society's Criminal Appeals Bureau, represented Mr. Tyrell. The case involves a regular practice in the New York City Criminal Courts, and therefore there is the potential for the reversal and dismissal of hundreds of convictions. For Mr. Tyrell, this reversal and dismissal will spare him from deportation. Therefore, this case has major immigration ramifications as well.

In the first case, supposedly a plea to 5th degree marijuana possession, defense counsel (not a Legal Aid Society attorney) announced the plea bargain and the court imposed sentence, without the court ever addressing the defendant and without the defendant saying a thing: not even that he pleaded guilty. In the second case, a plea to 4th degree marijuana sale, Tyrell acknowledged his guilt and that he agreed to plead guilty. Tryrell was not advised of his waiver of his constitutional rights as required by the Court of Appeals in the landmark Boykin ruling. In both cases, the sentence was imposed immediately.

On the merits, the Court held that it could not presume the waiver of constitutional rights from a silent record, noting that in both cases, "there is a complete absence of discussion of any of the pertinent constitutional rights; none are addressed by the court, defense counsel or defendant." The Court applied "the well-settled proposition that the record as a whole must contain an affirmative demonstration of the defendant's waiver of his fundamental constitutional rights."

By a vote of 4-2 (Judge Abdus-Salaam recused herself), the court, in an opinion by Judge Graffeo, joined by Chief Judge Lippman and Judges Read and Rivera, vacated both pleas. Judge Smith, joined by Judge Pigott, dissented. First, the majority held that preservation was not required. The Court noted that there were two potential grounds for this: the Lopez-Louree "rare case" exception, and "mode of proceedings": ""the complete absence of any indication that defendant waived his Boykin rights could also be viewed as a mode of proceedings error for which preservation is not required." However, the Court did not decide "which category applies because on these records, defendant's Boykin claims are clearly reviewable on direct appeal." The opinion relies heavily on the practical impossibility of a defense motion to withdraw the pleas, when " the plea and sentence occur[] during the same proceeding."