People v Mack (2013 NY Slip Op 50943(U))

People v Mack (Ronnie)

2013 NY Slip Op 50943(U) [39 Misc 3d 149(A)]

Decided on June 4, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The People of the State of New York, Respondent, —

against

Ronnie Mack, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Desmond A. Green, J.), rendered February 25, 2011. The judgment convicted defendant, upon his plea of guilty, of disorderly conduct.

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 charged with, and pleaded guilty to, disorderly conduct (Penal Law § 240.20). On appeal, defendant contends that the judgment of conviction should be reversed because his plea was not entered into knowingly, voluntarily and intelligently. We agree.

A review of the record indicates that the Criminal Court failed to conduct a proper plea allocution. We note that, under the particular circumstances of this case, this issue did not have to be raised in the Criminal Court in order to present a question of law for this court (see People v Louree, 8 NY3d 541, 546 [2007]; People v Facey, 30 Misc 3d 138[A], 2011 NY Slip Op 50224[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; People v Robles, 22 Misc 3d 140[A], 2009 NY Slip Op 50396[U] [App Term, 9th & 10th Dists 2009]). In any event, we would reach the issue as a matter of discretion in the interest of justice in view of the glaring deficiency of the [*2]plea allocution (see People v Pearson, 55 AD3d 314 [2008]; Facey, 30 Misc 3d 138[A], 2011 NY Slip Op 50224[U]).

The Criminal Court neither advised defendant of any of the constitutional rights he was waiving nor inquired whether he understood these 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]). Although there is no "uniform mandatory catchism of pleading defendants" (People v Nixon, 21 NY2d 338, 353 [1967]), the record in the case at bar fails to demonstrate that defendant's plea was knowing and voluntary (see Brady v United States, 397 US 742 [1970]; Harris, 61 NY2d at 16; Facey, 30 Misc 3d 138[A], 2011 NY Slip Op 50224[U]; People v Artusa, 19 Misc 3d 145[A], 2008 NY Slip Op 51125[U] [App Term, 2d & 11th Jud Dists 2008]).

Accordingly, the judgment convicting defendant of disorderly conduct is reversed and the plea of guilty is vacated. Since defendant committed a relatively minor offense and has completed his sentence, there would be little penological purpose to remitting the case for further proceedings. We, therefore, dismiss the accusatory instrument, as a matter of discretion in the interest of justice (see Facey, 30 Misc 3d 138[A], 2011 NY Slip Op 50224[U]; People v White, 26 Misc 3d 144[A], 2010 NY Slip Op 50440[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).