People v Dukes (Orlando)

[*1] People v Dukes (Orlando) 2015 NY Slip Op 50333(U) Decided on March 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 19, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570360/12

People of the State of New York, Respondent,

against

Orlando Dukes, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Herbert J. Adlerberg, J.H.O), rendered March 28, 2012, after a nonjury trial, convicting him of unlicensed general vending, and imposing sentence.

Per Curiam.

Judgment of conviction (Herbert J. Adlerberg, J.H.O.), rendered March 28, 2012, reversed, on the law, and accusatory instrument dismissed.

Defendant correctly argues, and the People candidly concede, that the court erred in proceeding to trial in the absence of defense counsel where the record taken as a whole (see People v Providence, 2 NY3d 579, 583 [2004]) fails to establish that defendant made a knowing and intelligent waiver of his right to counsel. Nor did defendant, by virtue of his own absence at trial, waive that fundamental right (see People v Aiken, 45 NY2d 394, 397—398 [1978]). In view of the minor nature of the offense here charged, we dismiss the accusatory instrument in lieu of ordering a new trial, a disposition consented to by the People.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 19, 2015