Opinion
2014-2 W CR
05-23-2017
The People of the State of New York, Respondent, v. Kenneth Crawford, Appellant.
PRESENT: :
Appeal from a judgment of the City Court of Yonkers, Westchester County (Arthur J. Doran, III, J.), rendered December 3, 2013. The judgment convicted defendant, upon his plea of guilty, of harassment in the second degree.
ORDERED that the judgment of conviction is reversed, on the law, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.
Defendant was initially charged with aggravated harassment in the second degree (Penal Law § 240.30 [1]), a class A misdemeanor. Following plea negotiations, defendant pleaded guilty to harassment in the second degree (Penal Law § 240.26 [3]), a violation, and was immediately sentenced. Assigned counsel had submitted an Anders brief (see Anders v California, 386 US 738 [1967]) on this appeal. This court held the appeal in abeyance, upon a finding that the Anders brief was inadequate, and new counsel was assigned to prosecute the appeal (51 Misc 3d 150[A], 2016 NY Slip Op 50838[U]). On appeal, defendant now contends, among other things, that the record fails to affirmatively demonstrate his understanding, or waiver, of his constitutional rights.
Initially, we note that defendant's claim is reviewable on direct appeal, despite the fact that he did not preserve it by moving to withdraw his plea pursuant to CPL 220.60 (3), or to vacate the judgment of conviction pursuant to CPL 440.10, as his plea and sentence took place at the same proceeding (see People v Conceicao, 26 NY3d 375, 381-382 [2015]; People v Tyrell, 22 NY3d 359, 364 [2013]; People v Peque, 22 NY3d 168, 182 [2013]).
"A guilty plea is not invalid solely because the trial court failed to recite a defendant's constitutional rights under Boykin v Alabama. The record as a whole, however, must affirmatively demonstrate that defendant knowingly, intelligently and voluntarily waived those rights" (People v Pellegrino, 26 NY3d 1063 [2015] [citations omitted]; see People v Conceicao, 26 NY3d at 382-384). Here, there was no discussion during the plea allocution of any of the pertinent constitutional rights (see Boykin v Alabama, 395 US 238 [1969]). There is no indication in the record that any of these rights were addressed by the City Court, defense counsel, or defendant, and there is no indication that defendant spoke with his attorney regarding the constitutional consequences of taking the plea, or that, under the circumstances, defendant understood those rights. Consequently, the judgment of conviction must be reversed (see People v Conceicao, 26 NY3d at 384; People v Tyrell, 22 NY3d at 363-366) and the plea vacated (see People v Andino, 50 Misc 3d 133[A], 2016 NY Slip Op 50030[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).
As defendant has served his sentence, and since the statute upon which the original charge of aggravated harassment in the second degree (Penal Law § 240.30 [1]) was based has been declared unconstitutional (see People v Golb, 23 NY3d 455 [2014]), as a matter of discretion in the interest of justice, we do not remit the matter to the City Court for further proceedings but, instead, dismiss the accusatory instrument (see People v Flynn, 79 NY2d 879, 882 [1992]; People v Kvalheim, 17 NY2d 510 [1966]; cf. People v Allen, 39 NY2d 916, 917-918 [1976]).
Tolbert, J.P., Iannacci and Brands, JJ., concur. Decision Date: May 23, 2017