People v Banks (Miguel)

[*1] People v Banks (Miguel) 2015 NY Slip Op 51099(U) Decided on July 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570088/12

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 (Seth L. Marvin, J.), rendered November 16, 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 (Seth L. Marvin, J.), rendered November 16, 2011, reversed, on the law, accusatory instrument dismissed, and surcharge, if paid, remitted.

By misdemeanor complaint dated November 16, 2011, defendant was charged with criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03), upon allegations that he had on his person "a glass pipe containing a black, tar-like residue . . . believed to be crack/cocaine." The complaint further alleged that defendant stated "[w]hy are you arresting me its just a pipe let me go." At arraignment the same day, defendant pled guilty to the charged offense and was thereupon sentenced, as agreed, to a conditional discharge. During the brief (two-page) plea allocution, defendant responded "yes" to the court's question "did you have possession of a crack pipe."

Defendant's challenge to the sufficiency of the plea allocution, reviewable on direct appeal in the circumstances presented (see People v Lopez, 71 NY2d 662, 666 [1988]), is meritorious and mandates reversal. Penal Law § 220.03 provides that a person is guilty of criminal possession of a controlled substance in the seventh degree when he or she "knowingly and unlawfully possesses a controlled substance." Defendant's admission during the plea allocution that he possessed a crack pipe, which mirrored the "it's just a pipe" statement attributed to him in the accusatory instrument, casted sufficient doubt on his guilt to the charged offense and otherwise called into question the voluntariness of the plea (see People v Lopez, 71 NY2d at 666). Clearly, a crack pipe is not a controlled substance (see Penal Law § 220.00; Public Health Law § 3306), and possession of a crack pipe alone does not constitute a crime (see People v Albadani, 187 Misc 2d 910 [Crim Ct NY County 2001]). The court therefore had an obligation to make further inquiry of defendant to ensure that he understood the nature of the charge and that the plea was intelligently entered (see People v Lawrence, 192 AD2d 332, 333 [*2][1993], lv denied 81 NY2d 1075 [1993]]). Since the court failed to do so, the plea must be vacated (see People v Zabele, 53 AD3d 685, 686 [2008]).

Inasmuch as defendant has served his sentence, we dismiss the accusatory instrument in lieu of remittal (see People v Moore, 24 NY3d 1030 [2014]). In light of this disposition, we need not and do not address defendant's remaining points.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: July 21, 2015