Opinion
2014-08-14
The PEOPLE of the State of New York, Respondent, v. Henry HARRIS, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Jordan K. Hummel of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Jordan K. Hummel of counsel), for respondent.
Judgment, Supreme Court, Bronx County (George Villegas, J.), rendered December 7, 2011, convicting defendant, upon his plea of guilty, of disorderly conduct, and sentencing him to a conditional discharge and a $120 fine, unanimously reversed, on the law and as a matter of discretion in the interest of justice, to the extent of vacating the plea, dismissing the counts of the accusatory instrument charging harassment in the second degree and menacing in the third degree, and remanding for further proceedings on the remaining charges.
Defendant's plea allocution did not establish a factual basis for the offense, or establish that he understood any of the rights he was giving up by pleading guilty. Since the allocution was completely inadequate, we conclude that the plea should be vacated in the interest of justice ( see People v. Vickers, 84 A.D.3d 627, 923 N.Y.S.2d 497 [1st Dept.2011] ).
In addition, the accusatory instrument was insufficient as a matter of law with regard to the harassment and menacing charges. The allegation that defendant pointed his finger in a shooting motion and stated, “I'm going to shoot you,” without any indication that defendant was armed at the time, did not set forth an imminent threat of harm to the complainant. Nor were any facts alleged showing the statement should have been taken seriously ( see People v. Dietze, 75 N.Y.2d 47, 53–54, 550 N.Y.S.2d 595, 549 N.E.2d 1166 [1989] ). However, the other charges were sufficiently stated. GONZALEZ, P.J., ACOSTA, DeGRASSE, FREEDMAN, RICHTER, JJ., concur.