Opinion
No. 2013–140 K CR.
09-17-2015
The PEOPLE of the State of New York, Respondent, v. Nancy BACETTY–ORTIZ, Appellant.
Opinion
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Geraldine Pickett, J., at plea; Erika M. Edwards, J., at sentence), rendered December 13, 2012. The judgment convicted defendant, upon her plea of guilty, of petit larceny and disorderly conduct.
ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the Criminal Court for all further proceedings.
Defendant was originally charged with, among other things, grand larceny in the third degree (Penal Law § 155.351 ), grand larceny in the fourth degree (Penal Law § 155.301 ) and petit larceny (Penal Law § 155.25), in connection with her receipt of unemployment benefits while she was, in fact, employed. On February 24, 2011, defendant entered a conditional plea of guilty to petit larceny (Penal Law § 155.25) and disorderly conduct (Penal Law § 240.201 ) in satisfaction of all charges. The court stated that, in the event defendant paid as restitution the total amount of unemployment benefits she had received, the charge of petit larceny would be dismissed, and she would be convicted only of disorderly conduct and be sentenced to a conditional discharge. However, in the event defendant did not make restitution in full, she would be convicted of petit larceny, a class A misdemeanor, as well as disorderly conduct. Defendant did not pay the full amounts of the restitution. Upon her conviction of petit larceny and disorderly conduct, defendant was sentenced to time served.
Defendant's conviction must be reversed, as her plea allocution contained no discussion whatsoever of any of the constitutional rights she was waiving by pleading guilty, and there is no indication that defendant had spoken with her attorney regarding the constitutional consequences of taking the plea (see People v. Tyrell, 22 NY3d 359 2013; People v. Sanchez, 126 AD3d 482 2015; People v. Miller, 113 AD3d 573, 573–575 2014; People v. Barnes, 46 Misc.3d 137[A], 2015 N.Y. Slip Op 50034[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; People v. Serrano, 45 Misc.3d 69, 71–72 [App Term, 2d, 11th & 13th Jud Dists 2014] ).
Under the circumstances of this case, a penological purpose would be served by remitting the matter to the Criminal Court for all further proceedings, as the offenses with which defendant was charged were serious (see People v. Allen, 39 N.Y.2d 916, 918 1976; People v. Serrano, 45 Misc.3d at 72).
Accordingly, the judgment of conviction is reversed and the matter is remitted to the Criminal Court for all further proceedings.
ELLIOT, J.P., PESCE and SOLOMON, JJ., concur.