Opinion
2015-03-12
The PEOPLE of the State of New York, Respondent, v. Javier SANCHEZ, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Kristina Schwarz of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Jordan K. Hummel of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Kristina Schwarz of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Jordan K. Hummel of counsel), for respondent.
GONZALEZ, P.J., TOM, RICHTER, KAPNICK, JJ.
Judgment, Supreme Court, Bronx County (Edgar G. Walker, J.), rendered June 28, 2012, convicting defendant, upon his plea of guilty, of operating a motor vehicle while under the influence of alcohol, and sentencing him to a conditional discharge and a $500 fine, unanimously reversed, on the law, the plea vacated, and the matter remanded for further proceedings.
The record fails to demonstrate that defendant was informed of any of the constitutional rights that he was waiving by pleading guilty ( see Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ) or that he consulted with counsel about the constitutional consequences of his guilty plea (People v. Tyrell, 22 N.Y.3d 359, 361, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013]; People v. Miller, 113 A.D.3d 573, 979 N.Y.S.2d 522 [1st Dept.2014] ). The only question addressed by the court to defendant was whether he wanted to plead guilty. Defense counsel then waived “further allocution,” and the court imposed sentence.
The People's reliance on People v. Perez, 116 A.D.3d 511, 983 N.Y.S.2d 269 (1st Dept.2014), lv. granted 24 N.Y.d 1004, 997 N.Y.S.2d 122, 21 N.E.3d 574 (2014), where this Court upheld a waiver of “formal allocution” regarding a plea to disorderly conduct resulting in a fine, is misplaced. Unlike disorderly conduct, driving while intoxicated is not a petty offense. Such a conviction is a misdemeanor rather than a traffic infraction, it affects a defendant's driving privileges, and it can be the basis for elevating a subsequent similar charge to a felony. Furthermore, in Perez there was more in the record than here to show consultation with counsel concerning the plea.