People v Wilson (Tiara)

[*1] People v Wilson (Tiara) 2020 NY Slip Op 51241(U) Decided on October 23, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2020
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Edmead, P.J., Higgitt, McShan, JJ.
570287/17

The People of the State of New York, Respondent,

against

Tiara Wilson, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Barbara F. Newman, J.H.O.), rendered March 27, 2017, convicting her, upon a plea of guilty, of violating Public Health Law § 229, and imposing sentence.

Per Curiam.

Judgment of conviction (Barbara F. Newman, J.H.O.), rendered March 27, 2017, reversed, on the law, the plea vacated, accusatory instrument dismissed and fine, if paid, remitted.

The information was not jurisdictionally defective. It contained nonconclusory factual allegations which, if true, established every element of the simple trespass offense charged (see Penal Law § 140.05) and the defendant's commission thereof, and supplied defendant with sufficient notice of the charged offense to satisfy the demands of due process and double jeopardy (see People v Middleton, 35 NY3d 952 [2020]; People v Wheeler, 34 NY3d 1134, 1135 [2020]).

The information recites that on a specified date and time, defendant knowingly entered and remained on the "roof" of 291 East 3rd Street, despite a "sign clearly posted on the entrance to [the] roof stat[ing] 'unlawful to enter roof.'" The information further alleges that defendant was cohosting a party on the roof.

However, we agree with defendant that the record fails to support the conclusion that her guilty plea was knowing, intelligent and voluntary. The court did not ask defendant any questions during the plea proceeding and defendant did not speak; nor was defendant advised of any constitutional rights she was waiving (see People v Moore, 24 NY3d 1030 [2014]; People v Tyrell, 22 NY3d 359, 365—366 [2013] ["[p]resuming waiver from a silent record is impermissible" (citation omitted)]). Given the relatively minor nature of the non-criminal violation here charged, we dismiss the accusatory instrument (see People v Burwell, 53 NY2d [*2]849, 851 [1981]). We note that the People have declined to submit a respondent's brief on this appeal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: October 23, 2020