9.37 - VI. The Plea Hearing

• Jurisdiction: New York

VI. THE PLEA HEARING

The content of a plea hearing varies. No ritual, uniform procedure is required.¹⁷⁵⁸ But the plea record as whole must affirmatively show that a defendant intentionally relinquished rights generally referenced in Boykin v. Alabama.¹⁷⁵⁹ A court has the duty to ensure that a defendant has a full understanding of what it means and its consequences. It is not required to engage in any particular litany but the record must be clear that the plea is a voluntary and intelligent choice among alternative courses of action. It must advise a defendant of the direct consequences of a plea and the resulting waiver of rights.¹⁷⁶⁰ Now “direct” and “indirect” consequences are somewhat blended, or simply conflated or confused.¹⁷⁶¹ There must be some evidence on the record that the defendant relinquished his rights and elected to plead guilty. The record must show that the defendant was represented by counsel, that the plea was discussed, that the defendant understood the consequences of the plea, that the plea was entered voluntarily,¹⁷⁶² and that the defendant acknowledged the facts underlying the plea.¹⁷⁶³ A silent record of a guilty plea allocution does not equal a knowing and intelligent waiver of constitutional rights regardless of prejudice to the defendant.¹⁷⁶⁴ The competency standard for pleading guilty is the same as the competency standard for standing trial.¹⁷⁶⁵ In the hearing, the court is obligated to ascertain formally the defendant’s awareness of the rights being relinquished by his plea of guilty and the defendant’s understanding of the risks and exposures involved. The optimum plea hearing places substance over form in the performance of this function. It also fully involves defense counsel in this function, both to assist the court in seeing that the defendant fully understands what he is about to do and also to assure that the lawyer will have performed his function competently and fully. A plea allocution does not have to elicit specific admissions as to each element of the crime. A guilty plea’s allocution is not the analogue to a verdict establishing each and every element of the crime. The law will not “disturb pleas by canny defendants even when there has been absolutely no elicitation of the underlying facts of the crime.”¹⁷⁶⁶ A voluntary plea does not become unintelligent or involuntary because later judicial decisions indicate that the plea rested on a faulty legal premise.¹⁷⁶⁷

Off-the-record side deals are unenforceable. Anything that is not on the record is not part of the plea agreement. “A defendant will not be heard to challenge his guilty plea when the minutes of the plea are unequivocal and refute any contention of an off-the-record promise.”¹⁷⁶⁸ A plea agreement that is not part of the record is unenforceable, even though the record does not contradict the terms of the alleged agreement:

The mere fact that the court failed to ask or the defendant failed to inform the court of the existence of other promises or inducements should not entitle that defendant to attempt to prove that other inducements led him to plead guilty, particularly where, as here, the defendant is represented in the plea bargaining process by experienced counsel.

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The court should, in every case, ascertain on the record that no other promises have been made on which the defendant might be relying. If the court fails to make this determination, however, it is nevertheless the

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