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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2012
PRESENT: LaCAVA, J.P., NICOLAI and LaSALLE, JJ
Appeal from a judgment of the City Court of Poughkeepsie, Dutchess County (Katherine A. Moloney, J.), rendered April 6, 2010. The judgment convicted defendant, upon his plea of guilty, of criminal mischief in the fourth degree.
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.
The People charged defendant in separate accusatory instruments with criminal mischief in the fourth degree (Penal Law § 145.00 ) and endangering the welfare of a child (Penal Law § 260.10 ), respectively, as a result of an incident in which defendant had smashed the window of the complainant's automobile, causing the complainant to be cut by shards of glass and traumatizing twin four-year-old children seated in the car. After lengthy plea negotiations, defendant agreed to plead guilty to the charge of criminal mischief in the fourth degree in exchange for a sentence of time served and an adjournment in contemplation of dismissal of the remaining charge. At the plea and sentencing proceeding, defendant stated little more than that he had committed the offense and that no other terms had been promised to induce his plea. Defendant was sentenced according to the terms of the plea agreement.
On appeal, defendant's sole claim is that his guilty plea was not knowingly and intelligently entered because he was never advised that certain fundamental constitutional rights are waived by a guilty plea and because the sentencing court made no effort to establish a basis for the inference that he understood the nature of those rights (see Boykin v Alabama, 395 US 246 ).
This claim is not preserved for appellate review (see People v Lopez, 71 NY2d 662, 665-666 ; People v Appling, 94 AD3d 1135 ). However, in light of the overall deficiency of the plea allocution, significantly, the absence of any reference to defendant's trial-related constitutional rights and the waiver thereof by a guilty plea, as a matter of discretion, we reach the issue in the interest of justice, reverse the judgment and vacate the plea (see People v Vickers, 84 AD3d 627 ; People v Pearson, 55 AD3d 314 ; People v Hastings, 32 Misc 3d 129[A], 2011 NY Slip Op 51302[U] [App Term, 9th & 10th Jud Dists 2011]).
Accordingly, the judgment of conviction is reversed, the guilty plea is vacated, and the matter is remitted to the City Court for all further proceedings.
LaCava, J.P., Nicolai and LaSalle, JJ., concur. Decision Date: September 13, 2012
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