Appeal from a judgment of the City Court of Glen Cove, Nassau County (Richard J. McCord, J.), rendered November 27, 2007. The judgment convicted defendant, upon his plea of guilty, of violating Municipal Code of the City of Glen Cove § 68-11 (C);

§ 111-9 (A) (1) (two charges); § 132-7 (A); § 132-7 (B); § 168-11 (A); § 168-25 (A);
§ 168-28 (A) and § 212-12 (A).

Judgment of conviction reversed, on the law, plea of guilty vacated, and matter remitted to the City Court of Glen Cove for further proceedings.

Defendant was convicted of a variety of building- and fire-related provisions of the Municipal Code of the City of Glen Cove. He challenges the adequacy of his plea allocution. We agree with defendant that his allocution, as set forth on the record, was fatally deficient, as he was never informed of the rights that he was waiving by pleading guilty, he never indicated that he was waiving them, and, indeed, he was never asked whether he agreed to plead guilty (see Boykin v Alabama, 395 US 238 [1969]; People v Hill, 9 NY3d 189 [2007]; People v Harris, 61 NY2d 9 [1983]; Hanson v Phillips, 442 F3d 789 [2d Cir 2006]; cf. People v Luster, 45 AD3d 866 [2007]). A court accepting a guilty plea must create a record affirmatively demonstrating that the defendant is aware of the rights he is waiving, and that his plea is knowing and voluntary (see Boykin v Alabama, 395 US 238 [1969], supra; Hanson v Phillips, 442 F3d 789 [2006], supra). The City Court completely failed to create such a record. Under the particular circumstances of this case, we find that this issue did not have to be raised in the City Court in order to present a question of law for this court (see generally People v Louree, 8 NY3d 541, 546 [2007]). In the alternative, we 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 [2008]). Accordingly, the judgment of conviction is reversed and the plea vacated (see [*2]generally People v Hill, 9 NY3d at 191), and the case is remitted to the City Court for further proceedings.

Defendant also argues, in effect, that the New York State Uniform Fire Prevention and Building Code completely preempts the Municipal Code of the City of Glen Cove in the field of regulation related to fire prevention and building. Even if we assume that this claim is jurisdictional in nature, and is thus now properly before us despite the fact that defendant failed to raise it in the City Court, and despite the fact that he pleaded guilty, we reject it on the merits. We do not find in the Uniform Fire Prevention and Building Code Act an express statement of preemption by the Legislature (compare Executive Law § 383 [1], with General Business Law § 396-i [6]). Furthermore, although the State has clearly expressed an interest in statewide uniformity (see Executive Law § 371 [2] [b], [c]), we do not find an implied statement of preemption. Rather, the Uniform Fire Prevention and Building Code Act permits localities to fill in the interstices of the State code with rules of their own. Executive Law § 379 (3) provides, in relevant part:

"Nothing in this article shall be construed to prohibit any municipality from adopting or enacting any building regulations relating to any matter as to which the uniform fire prevention and building code does not provide . . . "

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: March 09, 2009