People v Bishop (Christopher)

[*1] People v Bishop (Christopher) 2012 NY Slip Op 50094(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 This opinion is uncorrected and will not be published in the printed Official Reports.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: : NICOLAI, P.J., MOLIA and IANNACCI, JJ
2010-1758 S CR. -x

The People of the State of New York, Respondent,

against

Christopher Bishop, Appellant. -x

Appeal from a judgment of the Justice Court of the Town of Southold, Suffolk County (William H. Price, J.), entered June 19, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal contempt in the second degree and sentenced him to three years' probation.

ORDERED that the judgment of conviction is reversed, on the law, the plea of guilty is vacated, and the matter is remitted to the Justice Court for all further proceedings consistent herewith. [*2]

Defendant entered into a negotiated plea agreement whereby, in exchange for a guilty plea to criminal contempt in the second degree, three additional accusatory instruments would be dismissed, he would be sentenced to serve one year of interim probation, and upon his successful completion of that sentence, the misdemeanor conviction would be reduced to a violation. On appeal, defendant challenges the factual sufficiency of his plea allocution.

Upon a review of the record, we find that the Justice Court failed to conduct a proper plea allocution. We note that, under the particular circumstances of this case, this issue did not have to be raised in the Justice Court to present a question of law for this court (see People v Louree, 8 NY3d 541 [2007]; People v Facey, 30 Misc 3d 138[A], 2011 NY Slip Op 50224[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; People v Robles, 22 Misc 3d 140[A], 2009 NY Slip Op 50396[U] [App Term, 9th & 10th Jud Dists 2009]). In any event, owing to the glaring deficiencies of the plea allocution, we would reach this issue as a matter of discretion in the interest of justice (see People v Pearson, 55 AD3d 314 [2008]; People v Facey, 30 Misc 3d 138[A], 2011 NY Slip Op 50224[U]; People v Robles, 22 Misc 3d 140[A], 2009 NY Slip Op 50396[U]).

During the plea allocution, the court did not advise defendant of any of the rights that he was waiving as a result of his guilty plea (see Boykin v Alabama, 395 US 238 [1969]), correct a misstatement about the maximum sentence defendant faced if convicted of all four offenses, or inform defendant of the enhanced sentence he potentially faced if he failed to successfully complete a sentence of interim probation (see People v Pearson, 55 AD3d 314; People v Achaibar, 49 AD3d 389 [2008]). The court's bare inquiry consisted of having defendant acknowledge that he had discussed the charge with his parents and his attorney, that he had discussed the "ramifications" of pleading guilty, that he was aware that the promised sentence was interim probation and that he was pleading guilty to criminal contempt. Thus, the record fails to establish that defendant's guilty plea was knowing and voluntary (see People v Pearson, 55 AD3d 314).

Under certain circumstances, a defendant may enter a guilty plea without admitting culpability (see North Carolina v Alford, 400 US 25 [1970]). However, such "pleas are - and should be - rare and are allowed only when . . . [they] are the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt" (People v Hill, 16 NY3d 811, 814 [2011] [internal quotation marks and citation omitted], citing Matter of Silmon v Travis, 95 NY2d 470, 474, 475 [2000]). The record here fails to satisfy either requirement. Consequently, the record fails to establish that defendant's guilty plea was the product of a voluntary and rational choice (see People v Hill, 16 NY3d 811).

In light of this disposition, we do not reach defendant's remaining contentions.

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

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