People v Green

[*1] People v Green 2014 NY Slip Op 50815(U) Decided on May 9, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 9, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., IANNACCI and TOLBERT, JJ.
2012-2746 OR CR

The People of the State of New York, Respondent,

against

Tammi F. Green, Appellant.

Appeal from a judgment of the City Court of Middletown, Orange County (Steven W. Brockett, J.), rendered November 9, 2012. The judgment convicted defendant, upon her plea of guilty, of criminal possession of a controlled substance in the seventh degree.

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

In June 2012, defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). On appeal, defendantcontends, among other things, that her plea was insufficient since the court failed to advise her of her constitutional rights as required by Boykin v Alabama (395 US 238 [1969]).

Challenges to the sufficiency of a guilty plea must generally be preserved by a motion to withdraw the plea under CPL 220.60 (3) or by a motion to vacate the judgment of conviction under CPL 440.10 (see People v Louree, 8 NY3d 541, 546 [2007]; People v Lopez, 71 NY2d 662, 665-666 [1988]). Although defendant failed to make either such motion, "the complete absence of any indication that defendant waived [her]; Boykin rights could . . . be viewed as a mode of proceedings error for which preservation is not required" (People v Tyrell, 22 NY3d 359, 364 [2013]; see also People v Domin, Misc 3d [A], 2014 NY Slip Op 50403[U]; [App Term, 9th & 10th Jud Dists 2014]).

The record fails to affirmatively demonstrate defendant's understanding, or waiver, of her constitutional rights inasmuch as, during her plea allocution, there was no discussion of any of the pertinent constitutional rights by the City Court, defense counsel or defendant, and there is no indication that defendant even spoke with her attorney regarding the constitutional consequences of taking the plea (see People v Tyrell, 22 NY3d at 366; People v Domin, Misc 3d [A], 2014 NY Slip Op 50403[U]). Consequently, the judgment of conviction must be reversed (see United States v Dominguez Benitez, 542 US 74, 84 n 10 [2004]; Boykin v Alabama, 395 US at 244; People v Tyrell, 22 NY3d at 366; People v Domin, Misc 3d [A], 2014 NY Slip Op 50403[U]). Moreover, as a matter of discretion in the interest of justice, we dismiss the accusatory instrument, since defendant has completed her sentence and no penological purpose would be served by reinstating the proceedings (see People v Domin, Misc 3d [A], 2014 NY Slip Op 50403[U];; People v Facey, 30 Misc 3d 138[A], 2011 NY Slip Op 50224[U]; [App Term, 2d, 11th & 13th Jud Dists 2011]).

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

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

Decision Date: May 09, 2014