People v Andino (David)

[*1] People v Andino (David) 2016 NY Slip Op 50030(U) Decided on January 8, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., IANNACCI and TOLBERT, JJ.
2013-421 D CR

The People of the State of New York, Respondent,

against

David Andino, Appellant.

Appeal from a judgment of the Justice Court of the Town of Poughkeepsie, Dutchess County (Paul L. Banner, J.), rendered January 28, 2013. The judgment convicted defendant, upon his plea of guilty, of criminal possession of stolen property in the fifth degree.

ORDERED that the judgment of conviction is reversed, on the law, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.

Defendant was arrested and charged with criminal possession of stolen property in the fifth degree (Penal Law § 165.40) after he attempted to sell 13 pieces of jewelry which had been stolen from a home (Penal Law § 140.05). On November 26, 2012, defendant pleaded guilty to criminal possession of stolen property in the fifth degree and was sentenced to a term of one year of incarceration. Defendant has served his sentence.

As the People correctly concede, defendant's conviction must be reversed, as his plea allocution contained no discussion whatsoever of any of the constitutional rights he was waiving by pleading guilty, and there is no indication in the record that defendant had spoken with his attorney regarding the constitutional consequences of taking the plea before doing so (see People v Conceicao, NY3d , 2015 NY Slip Op 08615 [2015]; People v Tyrell, 22 NY3d 359 [2013]; People v Sanchez, 126 AD3d 482 [2015]; People v Miller, 113 AD3d 573, 573-574 [2014]; People v Barnes, 46 Misc 3d 137[A], 2015 NY Slip Op 50034[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; People v Green, 43 Misc 3d 141[A], 2014 NY Slip Op 50815[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; see also People v Serrano, 45 Misc 3d 69, 71-72 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; cf. People v Jackson, 114 AD3d 807, 807-808 [2014]).

Under the circumstances of this case, the accusatory instrument is dismissed, as a matter of discretion in the interest of justice, as defendant has served the maximum sentence, and no penological purpose would be furthered by reinstating the proceedings (see People v Domin, 42 Misc 3d 149[A], 2014 NY Slip Op 50403[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]).

Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.

Marano, P.J., Iannacci and Tolbert, JJ., concur.

Decision Date: January 08, 2016