People v Artusa (2008 NY Slip Op 51125(U))

People v Artusa (Frank)

2008 NY Slip Op 51125(U) [19 Misc 3d 145(A)]

Decided on May 29, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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

Frank Artusa, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Joel Goldberg, J., at plea and sentence), rendered January 17, 2005, and an amended judgment (Alex Zigman, J., at resentence), rendered May 9, 2005. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree and sentenced defendant to a conditional discharge. The amended judgment revoked the original sentence and imposed a new sentence of conditional discharge.

Judgment and amended judgment of conviction reversed on the law, plea of guilty vacated and matter remanded to the court below for all further proceedings.

Defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). A review of the record establishes that the lower court failed to conduct a proper plea allocution. The court neither advised defendant of the constitutional rights he was waiving nor inquired whether he understood them. "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]). 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 [*2]Hanson v Phillips, 442 F3d 789 [2006]). Accordingly, the judgment and amended judgment convicting defendant of criminal possession of a controlled substance in the seventh degree are reversed, the plea of guilty is vacated and the matter is remanded to the court below for all further proceedings.