People v Hastings (2011 NY Slip Op 51302(U))

People v Hastings (Timothy)

2011 NY Slip Op 51302(U) [32 Misc 3d 129(A)]

Decided on July 7, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The People of the State of New York, Respondent,

against

Timothy J. Hastings, Appellant.

Appeal from a judgment of the City Court of Poughkeepsie, Dutchess County (Katherine A. Moloney, J.), rendered July 8, 2009. The judgment convicted defendant, upon his plea of guilty, of attempted failure to register as a sex offender.

ORDERED that the judgment of conviction is reversed, as a matter of discretion in the interest of justice, the guilty plea is vacated, and the matter is remitted to the City Court for all further proceedings.

In a felony complaint, defendant was originally charged with violating Correction Law § 168-f (3) in that he failed to register as a sex offender. Defendant subsequently pleaded guilty to attempted failure to register as a sex offender (Penal Law § 110.00; Correction Law § 168-f [3]). During the plea proceeding, the City Court failed to conduct a proper plea allocution. The court neither informed defendant of the constitutional rights he was waiving as a result of his guilty plea nor inquired whether defendant understood his rights. "A record that is silent will not overcome the presumption against waiver by a defendant of a constitutionally guaranteed protection. To be sure, the record must show an intentional relinquishment or abandonment of a known right or privilege" (People v Harris, 61 NY2d 9, 17 [1983]; see People v Pearson, 55 AD3d 314 [2008]). While there is no requirement of a "uniform mandatory catechism of pleading defendants" (People v Nixon, 21 NY2d 338, 353 [1967]), the record does not demonstrate that the plea was knowing and voluntary (see Brady v United States, 397 US 742 [1970]; People v Harris, 61 NY2d at 16; People v Smith, 2002 NY Slip Op 40288[U] [App Term, 9th & 10th Jud Dists 2002]; see also Hanson v Phillips, 442 F3d 789 [2006]). Although defendant did not preserve the issue, we reach this contention by defendant on appeal as a matter of discretion in the interest of justice in view of the glaring deficiency in the plea allocution (see Pearson, 55 AD3d at 314).

Accordingly, the judgment of conviction is reversed, the guilty plea is vacated, and the matter is remitted to the City Court below for all further proceedings.