Opinion
02-23-2017
The PEOPLE of the State of New York, Respondent, v. Laverne WILSON, Defendant–Appellant.
Legal Aid Society, New York City (Christopher Almon and Lawrence T. Hausman of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York City (Brian R. Pouliot of counsel), for respondent.
Legal Aid Society, New York City (Christopher Almon and Lawrence T. Hausman of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City (Brian R. Pouliot of counsel), for respondent.
PRESENT: LOWE, III, P.J., SCHOENFELD, GONZALEZ, JJ.
PER CURIAM.
Judgment of conviction (Matthew A. Sciarrino, J. at plea; Diana M. Boyar, J. at sentencing), rendered September 20, 2013, modified, as a matter of discretion in the interest of justice, to the extent of reducing the conviction to disorderly conduct, and reducing the sentence to time served.
The misdemeanor information charging theft of services (see Penal Law § 165.15[3] ) was not jurisdictionally defective. Defendant's intent to unlawfully obtain subway service is reasonably inferred from the surrounding circumstances of his actions (see People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 [1977] ), including his entry into the subway system "without paying the required fare, by jumping over a turnstile" (see People v. Barlow, 46 Misc.3d 148[A], 2015 N.Y. Slip Op. 50237[U], 2015 WL 871891 [App.Term, 1st Dept.2015], lv. denied
25 N.Y.3d 1069, 12 N.Y.S.3d 620, 34 N.E.3d 371 [2015] ; People v. Mann, 53 Misc.3d 128[A], 2016 N.Y. Slip Op. 51344[U], 2016 WL 5400229 [App.Term, 1st Dept.2016] ; see also People v. Pin, 41 Misc.3d 128[A], 2013 N.Y. Slip Op. 51681[U], 2013 WL 5629948 [App.Term, 1st Dept.2013], affd. on other grounds sub nom. People v. Matthew P., 26 N.Y.3d 332, 23 N.Y.S.3d 74, 44 N.E.3d 149 [2015] ).
At the August 13, 2012 plea proceeding, the court promised defendant that he could withdraw his plea to the charged offense and replead to disorderly conduct, a violation, if "you stay out of trouble for one year."
On September 20, 2013, the court denied defendant the opportunity to replead because (1) he failed to appear on the August 12, 2013 scheduled court date, resulting in the issuance of a bench warrant, and (2) received a desk appearance ticket on July 3, 2013, for criminal possession of marijuana in the fifth degree and unlawful possession of marijuana.
The transcript of the August 2012 plea proceeding does not indicate that defendant was informed that if he failed to appear on a subsequent court date, he would be deprived of the right to replead to the lesser charge (see People v. Curcio, 276 A.D.2d 639, 714 N.Y.S.2d 512 [2000] ; People v. Hendricks, 270 A.D.2d 944, 705 N.Y.S.2d 476 [2000] ). Although the People are correct that defendant failed to preserve this contention for our review (see People v. Ramirez, 210 A.D.2d 56, 620 N.Y.S.2d 943 [1994], lv. denied 84 N.Y.2d 1037, 623 N.Y.S.2d 193, 647 N.E.2d 465 [1995] ), we nevertheless exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ; People v. Fortner, 23 A.D.3d 1058, 803 N.Y.S.2d 470 [2005] ) and conclude that the court should not have denied repleader based upon defendant's breach of a condition that was not part of the plea agreement (see People v. Jenkins, 11 N.Y.3d 282, 290, 869 N.Y.S.2d 370, 898 N.E.2d 553 [2008] ["a court does not have discretion to unilaterally impose conditions that were not originally agreed upon by the parties or reasonably understood to be part of the [plea] agreement"]; People v. Kinch, 15 A.D.3d 780, 789 N.Y.S.2d 770 [2005] ).
We also agree with defendant that there was no competent proof of the legitimacy of the postplea marijuana arrest. Indeed, the People conceded below that the Bronx County District Attorney declined to prosecute the marijuana charges because the arresting officer "didn't respond in a timely fashion to the Bronx request for him to come down and complete the DAT." The court should not have relied upon the hearsay allegations contained in the affidavit of the Bronx prosecutor as to the circumstances of the arrest (see People v. McClemore, 276 A.D.2d 32, 36, 716 N.Y.S.2d 497 [2000] ). Defense counsel's objections preserved the issue for our review and, in any event, even if the issue was unpreserved, we would exercise our power to review it as a matter of discretion in the interest of justice. In the circumstances, neither the August 12, 2013 nonappearance in court, nor the July 2013 desk appearance ticket warranted the conclusion that defendant forfeited his right to replead to disorderly conduct (see People v. Anonymous, 97 A.D.3d 1, 942 N.Y.S.2d 500 [2012] ; People v. McGirt, 198 A.D.2d 101, 603 N.Y.S.2d 164 [1993] ).