People v Pearson (Raymond)

[*1] People v Pearson (Raymond) 2022 NY Slip Op 51369(U) Decided on December 22, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ
2022-139 S CR

The People of the State of New York, Respondent,

against

Raymond A. Pearson, Appellant.

Danielle Coysh, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent.

Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (W. Alexander Melbardis, J.H.O.), rendered February 1, 2022. The judgment convicted defendant, upon his plea of guilty, of operating a motor vehicle while using a portable electronic device.

ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency, for all further proceedings.

On November 9, 2021, defendant was charged in a simplified traffic information with operating a motor vehicle while using a portable electronic device while such vehicle was in motion (Vehicle and Traffic Law § 1225-d [1]). Defendant was directed to appear in person or virtually before the Suffolk County Traffic and Parking Violations Agency (SCTPVA).

On February 1, 2022, defendant electronically appeared pro se at the SCTPVA. The entirety of defendant's plea colloquy consisted of:

"[THE COURT]: Okay. Mr. Pearson, do you agree to continue with this virtual Zoom conference?[DEFENDANT]: Yes, your Honor.[THE COURT]: Thank you. Okay. You're charged with a five-point electronic device violation. I'm going to enter a not guilty plea[,] advise you that you have the right to hire a lawyer and the right to go to a trial where a judge decides whether or not you are guilty. It's my understanding that you will plead guilty to the electronic device violation in return for a reduced fine and fees of $220. Is that correct?[DEFENDANT]: Yes, your Honor.[THE COURT]: Okay. I'll accept your guilty plea, so-order the disposition, and you will have until . . . [March 4th] to pay."

On appeal, defendant contends, among other things, that his guilty plea was not made knowingly or voluntarily. This claim does not require preservation because defendant pleaded guilty and was sentenced at the same proceeding, and, thus, he had no opportunity to raise this issue in the court below by moving to withdraw his plea (see People v Conceicao, 26 NY3d 375, 381 [2015]; People v Desz, 73 Misc 3d 130[A], 2021 NY Slip Op 50949[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Guyette, 59 Misc 3d 128[A], 2018 NY Slip Op 50402[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).

Here, as in Guyette and Desz, "[w]hile defendant was informed of the offense[] to which he would be pleading guilty, and what the fines and surcharges would be, he never admitted his guilt to the charge[]" (Guyette, 2018 NY Slip Op 50402[U], *3). The court did not ask him questions, such as whether he had been operating a motor vehicle, whether such vehicle was in motion, and whether he had been using a portable electronic device (see Vehicle and Traffic Law § 1225-d (1) ["no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion"]). While no catechism is required in connection with the acceptance of a guilty plea, and a plea allocution based on a negotiated plea does not require that a defendant make a specific admission as to each element of the charged offense (see People v Goldstein, 12 NY3d 295, 301 [2009]), here, "there was virtually no allocution of the unrepresented, inexperienced defendant" (Guyette, 2018 NY Slip Op 50402[U], *4; see Desz, 2021 NY Slip Op 50949[U]). Moreover, the plea record lacks the requisite "affirmative showing" that defendant understood and waived his Boykin rights (see Boykin v Alabama, 395 US 238, 242 [1969]; Desz,2021 NY Slip Op 50949[U]; Guyette, 2018 NY Slip Op 50402[U]).

In view of the foregoing, we need not reach defendant's remaining contention.

Accordingly, the judgment of conviction is reversed, and the matter is remitted to the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency, for all further proceedings.

GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2022