People v Gonzalez (Alvino)

[*1] People v Gonzalez (Alvino) 2014 NY Slip Op 50089(U) Decided on January 31, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 31, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ
570118/11.

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

against

Alvino Gonzalez, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Tamiko Amaker, J.), rendered January 19, 2011, convicting him, upon a plea of guilty, of disorderly conduct, and imposing sentence.

Per Curiam.

Judgment of conviction (Tamiko Amaker, J. at plea and sentence), rendered January 19, 2011, reversed, on the law, accusatory instrument dismissed and fine, if paid, remitted.

Defendant was initially charged by misdemeanor complaint with obstructing governmental administration (see Penal Law § 195.05) and resisting arrest (see Penal Law § 205.30), in connection with a barroom incident which occurred on the evening of January 18, 2011. At arraignment the following day, defendant pled guilty to disorderly conduct (see Penal Law § 240.20[1]) and was thereupon sentenced, as agreed, to payment of a $200 fine. The two-page plea colloquy reflects that defendant, through counsel, accepted the People's plea offer; that defendant, after some equivocation, admitted that he was guilty of the reduced disorderly conduct charge and that no one had "forced . . . or threatened" him to plead guilty; and that the court accepted defendant's plea without first informing him of his constitutional rights.

On appeal, defendant challenges the sufficiency and voluntariness of his guilty plea, focusing on the absence of any record indication that he knowingly waived his Boykin rights (see Boykin v Alabama, 395 US 238 [1969]), namely, the right to a trial by jury, the right to confront one's accusers and the privilege against self-incrimination.

Defendant's Boykin claims, reviewable on direct appeal in the circumstances presented (see People v Tyrell, — NY3d —, 2013 NY Slip Op 08288 [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 - in [*2]fact, th[is] case[] [was] . . . resolved during arraignment within [one] day[] of arrest."

Since it does not appear that further proceedings on the disorderly conduct charge here involved would serve any useful penological purpose (see People v Burwell, 53 NY2d 849, 851 [1981]), we dismiss the accusatory instrument.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 31, 2014