People v White (Patricia)

[*1] People v White (Patricia) 2010 NY Slip Op 50440(U) [26 Misc 3d 144(A)] Decided on March 9, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2008-323 Q CR.

The People of the State of New York, Respondent,

against

Patricia A. White, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Suzanne J. Melendez, J.), rendered December 7, 2007. The judgment convicted defendant, upon her plea of guilty, of disorderly conduct.

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

Defendant was charged in a misdemeanor complaint with assault in the third degree (Penal Law § 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]). The court file indicates that she was convicted, upon her guilty plea, of disorderly conduct (Penal Law § 240.20). Defendant asserts on appeal that her plea
should be vacated because her plea allocution was deficient. Although the issue defendant raises is not preserved, we reach it in the interest of justice.

The allocution was, in entire relevant part, as follows:
"THE COURT: Is there an offer?
[THE PROSECUTOR]: The offer is 240.26 with a conditional discharge and an Order of Protection.
THE COURT: It is not a bad offer and I will enter judgment. Is the defendant interested?
[DEFENSE COUNSEL]: She can pay the surcharge with time and we do have a disposition.
THE COURT: People move to add 240.20?
[THE PROSECUTOR]: Yes.
THE COURT: Application on behalf of the defendant.
[DEFENSE COUNSEL]: She pleads guilty to the violation.
THE COURT: Defendant waives formal allocution and prosecution by information?
[DEFENSE COUNSEL]: So waived.
THE COURT: Your sentence is a conditional discharge. The conditions being you stay out of trouble for one year. You pay a $90.00 dollars [sic] surcharge. I am giving you until 2/7 to pay.
And, last, please stay away from the complainant. I am signing an Order. No phone calls, letters and emails.
Make sure you do that. Otherwise, fifteen days in jail. Do you understand?
THE DEFENDANT: Yes."

We agree with defendant that the allocution was deficient. The initial "offer," as stated in the portion of the record of the plea and sentence proceeding set forth above, was a plea of guilty to "240.26" — harassment in the second degree (see Penal Law § 240.26) — one of the offenses charged in the misdemeanor complaint. There was no explicit mention whatsoever at the proceeding of the offense of disorderly conduct; the only reference to it was by its Penal Law section number, "240.20." Defendant pleaded guilty to "the violation." Thus, the allocution did not make clear that the plea was to a charge of disorderly conduct rather than harassment in the second degree. This failure to inform defendant of the most "direct consequence[ ]" (People v Hill, 9 NY3d 189, 191 [2007]) of her plea — that she would stand convicted of the particular offense of disorderly conduct — was a fatal deficiency (see id.). We do not construe defendant's waiver of "formal allocution" as encompassing a waiver of the baseline right to be informed of the offense to which she was pleading guilty. In light of our conclusion, we do not address the question whether defendant validly waived allocution as to the constitutional rights she was forfeiting by pleading guilty.

Accordingly, the judgment of conviction is reversed and the plea vacated (see generally People v Hill, 9 NY3d at 191). Since defendant committed a relatively minor offense and has apparently completed her sentence of a conditional discharge, there would be little penological purpose to remitting the case for further proceedings. We therefore dismiss the accusatory instrument, as a matter of discretion in the interest of justice (see People v Williams, 19 Misc 3d 139[A], 2008 NY Slip Op 50889[U] [App Term, 2d & 11th Jud Dists 2008]; cf. People v Allen, 39 NY2d 916 [1976]).

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 09, 2010