Opinion
No. 2012–2319 Q CR.
09-17-2015
The PEOPLE of the State of New York, Respondent, v. Peter DIOGUARDIA, Appellant.
Opinion
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 § 145.001 ), petit larceny (Penal Law § 155.25), unauthorized use of a vehicle in the third degree (Penal Law § 165.051 ) 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 N.Y.2d 536, 543 1993 ). The court 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 N.Y.2d 9, 17 1983; People v. Vickers, 84 AD3d 627, 628 2011; People v. Ackridge, 46 Misc.3d 143[A], 2015 N.Y. Slip Op 50184[U] [App Term, 9th & 10th Jud Dists 2015]; People v. Valcin, 45 Misc.3d 128[A], 2014 N.Y. Slip Op 51521[U] [App Term, 1st Dept 2014]; People v. Ottley, 44 Misc.3d 132[A], 2014 N.Y. Slip Op 51128[U] [App Term, 1st Dept 2014]; People v. Barabondeka, 43 Misc.3d 144[A], 2014 N.Y. Slip Op 50892[U] [App Term, 1st Dept 2014]; People v. Afilal, 43 Misc.3d 142 [A], 2014 N.Y. Slip Op 50851[U] [App Term, 1st Dept 2014]; People v. Mack, 39 Misc.3d 149[A], 2013 N.Y. Slip Op 50943[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; People v. Ebron, 36 Misc.3d 159[A], 2012 N.Y. Slip Op 51812 [U] [App Term, 9th & 10th Jud Dists 2012]; People v. Hastings, 32 Misc.3d 129 [A], 2011 N.Y. 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 N.Y.2d 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 N.Y.2d 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.