People v Dioguardia (Peter)

[*1] People v Dioguardia (Peter) 2015 NY Slip Op 51417(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 This opinion is uncorrected and will not be published in the printed Official Reports.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: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2012-2319 Q CR

The People of the State of New York, Respondent,

against

Peter Dioguardia, Appellant.

Appeal from two judgments of the Criminal Court of the City of New York, Queens County (Mary R. O'Donoghue, J.), rendered September 4, 2012. The judgments convicted defendant, upon his pleas of guilty, of petit larceny and possession of burglar's tools, respectively.

ORDERED that the judgments of conviction are reversed, on the law, the pleas of guilty are vacated, and the matters are remitted to the Criminal Court for all further proceedings on each on the accusatory instruments.

Defendant was arrested and charged with possession of burglar's tools (Penal Law § 140.35), criminal mischief in the fourth degree (Penal Law § 145.00 [1]), petit larceny (Penal Law § 155.25), unauthorized use of a vehicle in the third degree (Penal Law § 165.05 [1]) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40) in connection with an incident that occurred on April 29, 2012.

Defendant was also arrested and charged with possession of burglar's tools (Penal Law § 140.35) and trespass (Penal Law § 140.05) in connection with an incident that occurred on June 27, 2012.

On September 4, 2012, defendant agreed to plead guilty to petit larceny with respect to the April 29, 2012 incident, and to possession of burglar's tools with respect to the June 27, 2012 incident. The Criminal Court agreed to sentence defendant to a term of eight months of incarceration. During the plea allocution, the court asked defendant whether it was "correct" that his "lawyer tells me you want to plead guilty, sir, giving up your right to trial and right to remain silent." Defendant replied, "[y]es." After accepting the plea, the court immediately sentenced defendant as promised. The court also issued a five-year order of protection in favor of the complainant in the April 29, 2012 incident, and against defendant.

Defendant claims that his plea was not knowingly, voluntarily and intelligently entered. The claim is reviewable on direct appeal, notwithstanding that defendant did not move to withdraw his plea pursuant to CPL 220.60 (3), or to vacate the judgment of conviction pursuant to CPL 440.10, as defendant was sentenced at the same proceeding at which his plea was accepted, and the error is clear from the face of the record (see People v Tyrell, 22 NY3d 359, 364 [2013]).

Defendant's plea was not entered knowingly, voluntarily and intelligently, as there was no " affirmative showing on the record' that . . . defendant waived his constitutional rights" (People v Tyrell, 22 NY3d at 365, quoting People v Fiumefreddo, 82 NY2d 536, 543 [1993]). The court [*2]did not inquire, and defendant did not state on the record, whether he understood the rights he was waiving (see People v Tyrell, 22 NY3d at 365-366; People v Lopez, 6 NY3d 248, 256 [2006]; People v Harris, 61 NY2d 9, 17 [1983]; People v Vickers, 84 AD3d 627, 628 [2011]; People v Ackridge, 46 Misc 3d 143[A], 2015 NY Slip Op 50184[U] [App Term, 9th & 10th Jud Dists 2015]; People v Valcin, 45 Misc 3d 128[A], 2014 NY Slip Op 51521[U] [App Term, 1st Dept 2014]; People v Ottley, 44 Misc 3d 132[A], 2014 NY Slip Op 51128[U] [App Term, 1st Dept 2014]; People v Barabondeka, 43 Misc 3d 144[A], 2014 NY Slip Op 50892[U] [App Term, 1st Dept 2014]; People v Afilal, 43 Misc 3d 142[A], 2014 NY Slip Op 50851[U] [App Term, 1st Dept 2014]; People v Mack, 39 Misc 3d 149[A], 2013 NY Slip Op 50943[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; People v Ebron, 36 Misc 3d 159[A], 2012 NY Slip Op 51812[U] [App Term, 9th & 10th Jud Dists 2012]; People v Hastings, 32 Misc 3d 129[A], 2011 NY Slip Op 51302[U] [App Term, 9th & 10th Jud Dists 2011]).

The People's contention that, in light of defendant's extensive criminal history, defendant entered into the plea knowingly, intelligently and voluntarily (see People v Alexander, 97 NY2d 482 [2002]; People v Jackson, 114 AD3d 807, 808 [2014]), is based on

material that is dehors the record and cannot be considered in determining the
adequacy of defendant's plea.

Defendant contends that, as he has completed his sentence and has committed relatively minor offenses, the accusatory instruments should be dismissed as a matter of discretion in the interest of justice. However, in view of the totality of the circumstances, including that the proceedings involve several serious charges arising from two arrests, it cannot be said that no penological purpose would be served by remitting the matters for further proceedings (see People v Allen, 39 NY2d 916, 918 [1976]).

Accordingly, the judgments of conviction are reversed, the pleas of guilty are vacated and the matters are remitted to the Criminal Court for all further proceedings on each of the accusatory instruments.

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

Decision Date: September 17, 2015