People v Bacetty-Ortiz (Nancy)

[*1] People v Bacetty-Ortiz (Nancy) 2015 NY Slip Op 51420(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 This opinion is uncorrected and will not be published in the printed Official Reports.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.
2013-140 K CR

The People of the State of New York, Respondent,

against

Nancy Bacetty-Ortiz, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Geraldine Pickett, J., at plea; Erika M. Edwards, J., at sentence), rendered December 13, 2012. The judgment convicted defendant, upon her plea of guilty, of petit larceny and disorderly conduct.

ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the Criminal Court for all further proceedings.

Defendant was originally charged with, among other things, grand larceny in the third degree (Penal Law § 155.35 [1]), grand larceny in the fourth degree (Penal Law § 155.30 [1]) and petit larceny (Penal Law § 155.25), in connection with her receipt of unemployment benefits while she was, in fact, employed. On February 24, 2011, defendant entered a conditional plea of guilty to petit larceny (Penal Law § 155.25) and disorderly conduct (Penal Law § 240.20 [1]) in satisfaction of all charges. The court stated that, in the event defendant paid as restitution the total amount of unemployment benefits she had received, the charge of petit larceny would be dismissed, and she would be convicted only of disorderly conduct and be sentenced to a conditional discharge. However, in the event defendant did not make restitution in full, she would be convicted of petit larceny, a class A misdemeanor, as well as disorderly conduct. Defendant did not pay the full amounts of the restitution. Upon her conviction of petit larceny and disorderly conduct, defendant was sentenced to time served.

Defendant's conviction must be reversed, as her plea allocution contained no discussion whatsoever of any of the constitutional rights she was waiving by pleading guilty, and there is no indication that defendant had spoken with her attorney regarding the constitutional consequences of taking the plea (see People v Tyrell, 22 NY3d 359 [2013]; People v Sanchez, 126 AD3d 482 [2015]; People v Miller, 113 AD3d 573, 573-575 [2014]; People v Barnes, 46 Misc 3d 137[A], 2015 NY Slip Op 50034[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; People v Serrano, 45 Misc 3d 69, 71-72 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Under the circumstances of this case, a penological purpose would be served by remitting the matter to the Criminal Court for all further proceedings, as the offenses with which defendant was charged were serious (see People v Allen, 39 NY2d 916, 918 [1976]; People v Serrano, 45 Misc 3d at 72).

Accordingly, the judgment of conviction is reversed and the matter is remitted to the Criminal Court for all further proceedings.

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

Decision Date: September 17, 2015