People v Johnson (Brian)

[*1] People v Johnson (Brian) 2015 NY Slip Op 50158(U) Decided on February 25, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 25, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Shulman, Ling-Cohan, JJ.
570126/12

The People of the State of New York, Respondent, -

against

Brian Johnson, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (John T. Hecht, J.), rendered October 18, 2011, convicting him, upon a plea of guilty, of criminal possession of marihuana in the fifth degree, and imposing sentence.

Per Curiam.

Judgment of conviction (John T. Hecht, J.), rendered October 18, 2011, reversed, on the law, accusatory instrument dismissed and surcharge, if paid, remitted.

By misdemeanor complaint dated October 18, 2011, defendant was charged with criminal possession of marihuana in the fifth degree (Penal Law § 221.10[1]) and unlawful possession of marihuana (Penal Law § 221.05). At arraignment, the same day, defendant pled guilty to the fifth-degree criminal possession of marihuana charge and was thereupon sentenced, as agreed, to three days of community service. The two-page plea colloquy reflects that defendant, through counsel, accepted the People's plea offer; that defendant stated that his guilty plea was voluntary and indicated a preference for "light duty" in his community service because of a medical condition; and that the court accepted defendant's plea without informing him of any of his constitutional rights under Boykin v Alabama (395 US 238 [1969]).

Defendant's Boykin claims, reviewable on direct appeal in the circumstances presented (see People v Tyrell, 22 NY3d 359 [2013]), are meritorious and mandate reversal, since the plea record, such as there is, does not affirmatively demonstrate defendant's understanding or waiver of his fundamental constitutional rights. As was true in Tyrell, the record here shows "a complete absence of discussion of any of the pertinent constitutional rights; none are addressed by the court, defense counsel or defendant. Nor is there any indication that defendant spoke with his attorney regarding the constitutional consequences of taking a plea — in fact, th[is] case[ ][was] ... resolved during arraignment [the same] day[ ] of arrest."

Since it does not appear that further proceedings on the underlying marihuana possession charge here involved would serve any useful penological purpose (see People v Tyrell, 22 NY3d at 366), we dismiss the accusatory instrument.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: February 25, 2015