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PLEA ALLOCUTION NEGATED AN ESSENTIAL ELEMENT OF THE CHARGED VIOLATION OF THE CORRECTION LAW, THE ISSUE SURVIVES THE FAILURE TO MOVE TO WITHDRAW THE PLEA AND THE WAIVER OF APPEAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction for a violation of the Correction Law, determined that the plea allocution negated an essential element of the offense. Because the voluntariness of the plea was called into question the issue survived the failure to move to withdraw the plea and the waiver of appeal:

A sex offender is required to register with the Division “no later than ten calendar days after any change of address” and to pay a fee of ten dollars “each time such offender registers any change of address” (Correction Law § 168-f[4]). A sex offender who fails to so register within the required time period is guilty of a felony (seeCorrection Law § 168-t).

As the defendant contends, his factual allocution during the plea proceeding negated an essential element of the offense charged, thereby casting significant doubt upon his guilt. Specifically, the defendant indicated that he provided the Division with the address of a homeless shelter that he was using, although he acknowledged that there were some nights when he could not stay in the shelter. He explained “sometimes if you don’t get there in time all the beds are taken, so sometimes you get turned away.” On those days, the defendant asserted, he stayed at a friend’s house instead. These statements tended to demonstrate that the defendant did not, in fact, change his address and thus, was not required to notify the Division … . People v Wright, 2019 NY Slip Op 05428, Second Dept 7-3-19

 

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