People v Borofsky (Michael)

[*1] People v Borofsky (Michael) 2012 NY Slip Op 50095(U) Decided on January 20, 2012 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 20, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : LaCAVA, J.P., NICOLAI and IANNACCI, JJ
. -x

The People of the State of New York, Respondent,

against

Michael Borofsky, Appellant. -x

Appeal from a judgment of the Justice Court of the Village of Tarrytown, Westchester County (Kyle McGovern, J.), rendered March 25, 2010. The judgment convicted defendant, upon his plea of guilty, of permitting a dog to be at large and permitting a dog to soil private property not belonging to him.

ORDERED that the judgment is reversed, on the law, the guilty plea is vacated, and the matter is remitted to the Justice Court for all further proceedings.

Defendant was charged in a single accusatory instrument dated January 8, 2010 with permitting a dog to be at large (Tarrytown Village Code § 125-2 [A]) and permitting a dog to soil private property (Tarrytown Village Code § 125-2 [D]).

The parties appeared for trial on March 25, 2010; however, prior to the commencement of trial, defendant, pro se, pleaded guilty to the charged offenses and received a sentence of a $250 fine for each violation and a one-year conditional discharge. Five pending charges were dismissed in satisfaction of defendant's guilty plea.

We agree with defendant's contention, in effect, that his plea was not knowingly, intelligently and voluntarily made (see People v Rivera, 65 AD3d 1265 [2009]). We further find that, under the particular circumstances of this case, this argument is cognizable on direct appeal and preservation was not required (see People v Robles, 22 Misc 3d 140[A], 2009 NY Slip Op 50396[U] [App Term, 9th & 10th Jud Dists 2009]; see generally People v Louree, 8 NY3d 541, 546 [2007]; cf. People v Luster, 45 AD3d 866 [2007]). Alternatively, owing to the glaring deficiency of the plea allocution, we would, in any event, reach this issue in the interest of justice (see People v Pearson, 55 AD3d 314 [2008]; People v Hastings, 32 Misc 3d 129[A], 2011 NY Slip Op 51302[U] [App Term, 9th & 10th Jud Dists 2011]; People v Robles, 22 Misc 3d 140[A], 2009 NY Slip Op 50396[U]).

While "[t]here is no requirement for a uniform mandatory catechism of pleading defendants" (People v Seeber, 4 NY3d 780, 781 [2005]), "a court accepting a guilty plea must create a record affirmatively demonstrating that a defendant is aware of the rights that he is waiving, and that his plea is knowing and voluntary" (People v Robles, 22 Misc 3d 140[A], 2009 NY Slip Op 50396[U], *1; see also Boykin v Alabama, 395 US 238 [1969]; People v Harris, 61 NY2d 9, 17 [1983]; Hanson v Phillips, 442 F3d 789 [2d Cir 2006]). In this case, the Justice Court failed to create the requisite record. [*2]

Accordingly, the judgment is reversed, the guilty plea is vacated and the matter is remitted to the Justice Court for all further proceedings.

LaCava, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: January 20, 2012