SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
February 16, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Dorothy Chin-Brandt, J.), rendered February 21, 2009. The judgment convicted defendant, upon his plea of guilty, of disorderly conduct.
People v Facey (Roland)
Decided on February 16, 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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on February 16, 2011
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
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 criminal possession of marihuana in the fifth degree (Penal Law § 221.10 ). The factual portion of the information, and the supporting deposition, alleged that defendant "possessed" the marihuana "in a public place and open to public view" and that marihuana was recovered from an ashtray in front of defendant and from the floor at defendant's feet inside of the front room of a store. Defendant entered into a negotiated plea agreement whereby, in exchange for a guilty plea to disorderly conduct, he would be sentenced to three days' community service and a $150 fine.
On appeal, defendant contends that the information is jurisdictionally defective because it fails to contain factual allegations which, if true, establish the element of possession of marihuana.
Section 100.40 (1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms to the requirements of CPL 100.15 and the factual allegations (together with any supporting depositions which may accompany it) provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part, and the non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and defendant's commission thereof. The law does not require that the most precise words or phrases which most clearly express the thought be contained in an information, but only that the offense be alleged and the specifics set forth so that a defendant can prepare himself for trial and will not be tried again for the same offense (see People v Konieczny, 2 NY3d 569, 575 ; People v Zambounis, 251 NY 94 ). The failure to comply with these requirements is a non-waivable jurisdictional defect (see People v Alejandro, 70 NY2d 133 ), with the exception that a claim of a failure to comply with the non-hearsay requirement must be preserved (see People v Casey, 95 NY2d 354, 366-367 ) and is, in any event, forfeited by a plea of guilty (see People v Pittman, 100 NY2d 114, 122 ).
We find that the information is not jurisdictionally defective. The allegation in the supporting deposition that defendant "possessed" the marihuana is sufficiently evidentiary in character to establish defendant's possession of the subject contraband (see Penal Law § 10.00 ; People v Ortiz, 146 Misc 2d 594 [App Term, 2d & 11th Jud Dists 1990]).
Defendant further contends that the judgment should be reversed because the record is silent as to whether he intelligently and voluntarily entered his plea of guilty.
Upon a review of the record, we find 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 generally People v Louree, 8 NY3d 541, 546 ; People v Robles, 22 Misc 3d 140[A], 2009 NY Slip Op 50396[U] [App Term, 9th & 10th Jud 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 plea allocution (see generally People v Pearson, 55 AD3d 314 ).
The court neither advised defendant of any of the constitutional rights he was waiving nor inquired whether he understood those rights. Although there is no requirement of a "uniform mandatory catechism of pleading defendants" (People v Nixon, 21 NY2d 338, 353 ), "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 ). Here, the record does not demonstrate that the plea was knowing and voluntary (see Brady v United States, 397 US 742 ; Harris, 61 NY2d at 16; People v Artusa, 19 Misc 3d 145[A], 2008 NY Slip Op 51125[U] [App Term, 2d & 11th Jud Dists 2008]).
Accordingly, the judgment of conviction 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 People v White, 26 Misc 3d 144[A], 2010 NY Slip Op 50440[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).
Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: February 16, 2011
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