People v Banks (Miguel)

[*1] People v Banks (Miguel) 2015 NY Slip Op 50446(U) Decided on April 2, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 2, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570088/12

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

against

Miguel Banks, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Joseph E. Capella, J.), rendered November 24, 2011, convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Joseph E. Capella, J.), rendered November 24, 2011, reversed, on the law, accusatory instrument dismissed and surcharge, if paid, remitted.

By misdemeanor complaint dated November 22, 2011, defendant was charged with criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03). At arraignment, two-days later, defendant pled guilty to the charged offense and was thereupon sentenced, as agreed, to time served. The two-page plea colloquy reflects that defendant, through counsel, accepted the People's plea offer; that defendant admitted his guilt and stated that his guilty plea was voluntary; 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."

Inasmuch as defendant has served his sentence, we dismiss the accusatory instrument in lieu of ordering a new trial (see People v Moore, 24 NY3d 1030 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: April 02, 2015