Opinion
2017-2038 Q CR
01-24-2020
The PEOPLE of the State of New York, Respondent, v. Peter ALI, Appellant.
Feldman and Feldman (Steven A. Feldman of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill and Danielle M. O'Boyle of counsel), for respondent.
Feldman and Feldman (Steven A. Feldman of counsel), for appellant.
Queens County District Attorney (John M. Castellano, Johnnette Traill and Danielle M. O'Boyle of counsel), for respondent.
PRESENT: MICHELLE WESTON, J.P., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
ORDERED that so much of the appeal as is from the judgment convicting defendant of aggravated unlicensed operation of a motor vehicle in the third degree (Criminal Court docket No. CR-027376-17QN) is dismissed as abandoned; and it is further,
ORDERED that the judgment convicting defendant of disorderly conduct (Criminal Court docket No. CR-027377-17QN) is reversed, on the law, and, as a matter of discretion in the interest of justice, the accusatory instrument under that docket number is dismissed.
At the outset, we note that defendant appeared before the Criminal Court on three dockets and a plea agreement on each docket was discussed. Defendant's notice of appeal sets forth that he is appealing from only two of the three judgments of conviction rendered that day. As no issue has been raised on appeal with respect to one of the two judgments—the judgment convicting defendant of aggravated unlicensed operation of a motor vehicle in the third degree, under Criminal Court docket No. CR-027376-17QN—so much of the appeal as is from that judgment of conviction is dismissed as abandoned (see People v. Rodriguez , 14 AD3d 719 [2005] ).
Defendant was charged in an information with criminal possession of a forged instrument in the third degree ( Penal Law § 170.20 ), under Criminal Court docket No. CR-027377-17QN. At a plea proceeding, defendant appeared before the Criminal Court, and the People moved to add, for disposition purposes, a charge of disorderly conduct ( Penal Law § 240.20 ) to that docket. During the colloquy, defendant, represented by counsel, confirmed that he had discussed all the pleas with his attorney, and that no one had forced him to plead guilty.
On appeal, defendant contends that the judgment of conviction of disorderly conduct should be vacated because the Criminal Court never allocuted him on that charge, the record of plea proceedings is silent with respect to any facts regarding disorderly conduct, and defendant did not even acknowledge that he was guilty of disorderly conduct. The People concede that the court did not allocute defendant on the disorderly conduct charge, but contend that a factual allocution is not required because the plea was not improvident or baseless, particularly since defendant was represented by counsel.
Initially, we note that while, "[g]enerally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea ... or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10" ( People v. Peque , 22 NY3d 168, 182 [2013] ), here, defendant's claim is reviewable on direct appeal because defendant faced a practical inability to move to withdraw his plea, since he pleaded guilty and was sentenced in the same proceeding (see People v. Williams , 27 NY3d 212, 219-223 [2016] ; People v. Sougou , 26 NY3d 1052, 1054 [2015] ; People v. Louree , 8 NY3d 541, 546 [2007] ; People v. Cappiello , 60 Misc 3d 139[A], 2018 NY Slip Op 51168[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] ).
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] ). A guilty plea will be upheld so long as the record as a whole affirmatively discloses that a defendant who pleaded guilty entered his plea "voluntarily, knowingly and intelligently" ( People v. Haffiz , 19 NY3d 883, 884 [2012] [internal quotation marks omitted] ).
Here, during the plea proceeding, the Criminal Court asked defendant whether he understood that he "will be " (emphasis added) pleading to the added charge of disorderly conduct, a violation, in satisfaction of the misdemeanor charge contained in the information under Criminal Court docket No. CR-027377-17QN, to which defendant responded in the affirmative. During the colloquy, defendant also affirmed that he was not being forced to accept the three guilty pleas he would be entering that day, that he had had an opportunity to discuss the pleas with his attorney, and that he understood the constitutional rights he would be waiving by pleading guilty. However, the record reflects that the Criminal Court never asked defendant to enter a plea to the charge of disorderly conduct or even whether he was guilty of disorderly conduct, and defendant never admitted that he was guilty of that charge. Consequently, the record as a whole establishes that defendant never pleaded guilty to disorderly conduct (cf. People v. Robinson , 61 Misc 3d 130[A], 2018 NY Slip Op 51417[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] ).
Under the circumstances, since defendant has completed his sentence, we are of the opinion that no penological purpose would be served in reinstating the prepleading charge of criminal possession of a forged instrument in the third degree contained in the accusatory instrument (see CPL 470.55 [2] ). Therefore, we dismiss the accusatory instrument, as a matter of discretion in the interest of justice (see People v. Vicuna , 53 Misc 3d 153[A], 2016 NY Slip Op 51734[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; People v. Moore , 48 Misc 3d 143[A], 2015 NY Slip Op 51337[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ).
Accordingly, the judgment convicting defendant of disorderly conduct (Criminal Court docket No. CR-027377-17QN) is reversed and the accusatory instrument under that docket number is dismissed.
WESTON, J.P., ELLIOT and SIEGAL, JJ., concur.