People v Barricella (Daniel)

[*1] People v Barricella (Daniel) 2015 NY Slip Op 51418(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 This opinion is uncorrected and will not be published in the printed Official Reports.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.
2012-2539 K CR

The People of the State of New York, Respondent,

against

Daniel Barricella, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John DeLury, J.H.O.), rendered October 11, 2012. The judgment convicted defendant, upon his plea of guilty, of exposure of a person.

ORDERED that the judgment of conviction is reversed, on the law, defendant's guilty plea is vacated, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.

Defendant, while represented by counsel, pleaded guilty to exposure of a person (Penal Law § 245.01), a violation, in satisfaction of all of the counts of the accusatory instrument and he was sentenced to a conditional discharge in the same proceeding. On appeal, defendant contends that his plea was insufficient since the court failed to advise him of his constitutional rights as required by Boykin v Alabama (395 US 238 [1969]). The People concede that the guilty plea should be vacated and the accusatory instrument dismissed in the interest of justice.

Defendant's Boykin claim is reviewable on direct appeal (see People v Tyrell, 22 NY3d 359, 364 [2013]; People v Louree, 8 NY3d 541, 546 [2007]), and his conviction must be reversed, as defendant's plea allocution contained no discussion whatsoever of any of the constitutional rights he 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 366). There is no indication that defendant had spoken with his attorney, before entering the plea, regarding the constitutional consequences of taking the plea or that he 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]). In fact, here, as in People v Moore (24 NY3d 1030 [2014]), the court did not address defendant whatsoever.

Furthermore, as a matter of discretion in the interest of justice, and as requested by the People, we dismiss the accusatory instrument (see People v Flynn, 79 NY2d 879, 882 [1992]; People v Barnes, 46 Misc 3d 137[A], 2015 NY Slip Op 50034[U]; People v Facey, 30 Misc 3d [*2]138[A], 2011 NY Slip Op 50224[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment of conviction is reversed, defendant's guilty plea is vacated, and the accusatory instrument is dismissed.

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

Decision Date: September 17, 2015