People v Samuel (Oddette)

[*1] People v Samuel (Oddette) 2015 NY Slip Op 51413(U) Decided on September 17, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 17, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2012-434 K CR

The People of the State of New York, Respondent,

against

Oddette G. Samuel, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Jacqueline D. Williams, J.), rendered January 23, 2012. The judgment convicted defendant, upon her plea of guilty, of disorderly conduct.

ORDERED that the judgment of conviction is reversed, on the law, defendant's guilty plea is vacated, and the matter is remitted to the Criminal Court for all further proceedings.

Defendant, while represented by counsel, pleaded guilty to disorderly conduct (Penal Law § 240.20), a violation, in satisfaction of the charge of attempted petit larceny (Penal Law §§ 110.00, 155.25). On appeal, defendant contends 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]).

Defendant's Boykin claim is reviewable on direct appeal (see People v Tyrell, 22 NY3d 359, 364 [2013]), and her conviction must be reversed, as defendant's plea allocution contained no discussion whatsoever of any of the constitutional rights she was purportedly waiving by pleading guilty. The Court of Appeals has held that "[p]resuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused intelligently and understandingly rejected his constitutional rights. Anything less is not waiver" (People v Harris, 61 NY2d 9, 17 [1983]; see also People v Tyrell, 22 NY3d at 365—366). There is no indication that defendant had spoken with her attorney, before entering the plea, regarding the constitutional consequences of taking the plea or that she was otherwise aware of these consequences (see Tyrell, 22 NY3d at 366; People v Miller, 113 AD3d 573 [2014]; People v Barnes, 46 Misc 3d 137[A], 2015 NY Slip Op 50034[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; but see People v Perez, 116 AD3d 511, 511 [2014] [affirming the conviction of a defendant who had pleaded guilty to a violation where "the record establishe[d] defendant's understanding and waiver of his constitutional rights . . ., even though there was no discussion on the record of defendant's [Boykin] rights"], lv granted 24 NY3d 1004 [2014]). However, we decline to dismiss the accusatory instrument in the interest of justice since it cannot be said that no penological purpose would be served by reinstating the proceedings (see People v Allen, 39 NY2d 916, 917-918 [1976]), given defendant's occupation, involving a position of trust, and the fact that the charged offense arose from that occupation.

Accordingly, the judgment of conviction is reversed, defendant's guilty plea is vacated, and the matter is remitted to the Criminal Court for all further proceedings.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: September 17, 2015