Opinion
No. 2012–434 K CR.
09-17-2015
The PEOPLE of the State of New York, Respondent, v. Oddette G. SAMUEL, Appellant.
Opinion
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Jacqueline D. Williams, J.), rendered January 23, 2012. The judgment convicted defendant, upon her plea of guilty, of disorderly conduct.
ORDERED that the judgment of conviction is reversed, on the law, defendant's guilty plea is vacated, and the matter is remitted to the Criminal Court for all further proceedings.
Defendant, while represented by counsel, pleaded guilty to disorderly conduct (Penal Law § 240.20), a violation, in satisfaction of the charge of attempted petit larceny (Penal Law §§ 110.00, 155.25). On appeal, defendant contends that her plea was insufficient since the court failed to advise her of her constitutional rights as required by Boykin v. Alabama (395 U.S. 238 1969 ).
Defendant's Boykin claim is reviewable on direct appeal (see People v. Tyrell, 22 NY3d 359, 364 2013 ), and her conviction must be reversed, as defendant's plea allocution contained no discussion whatsoever of any of the constitutional rights she 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 N.Y.2d 9, 17 1983; see also People v. Tyrell, 22 NY3d at 365–366). There is no indication that defendant had spoken with her attorney, before entering the plea, regarding the constitutional consequences of taking the plea or that she 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 N.Y. 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 ). However, we decline to dismiss the accusatory instrument in the interest of justice since it cannot be said that no penological purpose would be served by reinstating the proceedings (see People v. Allen, 39 N.Y.2d 916, 917–918 1976 ), given defendant's occupation, involving a position of trust, and the fact that the charged offense arose from that occupation.
Accordingly, the judgment of conviction is reversed, defendant's guilty plea is vacated, and the matter is remitted to the Criminal Court for all further proceedings.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.