Opinion
No. 2012–2539 K CR.
09-17-2015
The PEOPLE of the State of New York, Respondent, v. Daniel BARRICELLA, Appellant.
Opinion
ORDERED that the judgment of conviction is reversed, on the law, defendant's guilty plea is vacated, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.
Defendant, while represented by counsel, pleaded guilty to exposure of a person (Penal Law § 245.01), a violation, in satisfaction of all of the counts of the accusatory instrument and he was sentenced to a conditional discharge in the same proceeding. On appeal, defendant contends that his plea was insufficient since the court failed to advise him of his constitutional rights as required by Boykin v. Alabama (395 U.S. 238 1969 ). The People concede that the guilty plea should be vacated and the accusatory instrument dismissed in the interest of justice.
Defendant's Boykin claim is reviewable on direct appeal (see People v. Tyrell, 22 NY3d 359, 364 2013; People v. Louree, 8 NY3d 541, 546 2007 ), and his conviction must be reversed, as defendant's plea allocution contained no discussion whatsoever of any of the constitutional rights he 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 366). There is no indication that defendant had spoken with his attorney, before entering the plea, regarding the constitutional consequences of taking the plea or that he 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 ). In fact, here, as in People v. Moore (24 NY3d 1030 2014 ), the court did not address defendant whatsoever.
Furthermore, as a matter of discretion in the interest of justice, and as requested by the People, we dismiss the accusatory instrument (see People v. Flynn, 79 N.Y.2d 879, 882 1992; People v. Barnes, 46 Misc.3d 137[A], 2015 N.Y. Slip Op 50034[U]; People v. Facey, 30 Misc.3d 138[A], 2011 N.Y. Slip Op 50224[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ).
Accordingly, the judgment of conviction is reversed, defendant's guilty plea is vacated, and the accusatory instrument is dismissed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.