You are here: / / DEFENDANT’S STATEMENTS DURING THE PLEA ALLOCUTION NEGATED ELEMENTS...
, ,

DEFENDANT’S STATEMENTS DURING THE PLEA ALLOCUTION NEGATED ELEMENTS OF THE CHARGED OFFENSE; THE JUDGE SHOULD HAVE CONDUCTED AN INQUIRY OR GIVEN THE DEFENDANT THE OPPORTUNITY TO WITHDRAW HIS PLEA; THIS ISSUE FALLS WITHIN AN EXCEPTION TO THE PRESERVATION REQUIREMENT (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined the defendant made statements during the plea allocution which negated elements of criminal possession of a weapon. At that point, the sentencing judge should have made an inquiry. This issue falls within an exception to the preservation requirement:

Penal Law § 265.03 (3) requires the possession of a “loaded firearm,” meaning “an operable gun with either live ammunition in the gun or held on [the defendant’s] person” with the gun … . … [D]efendant negated that element at sentencing when he stated that the handgun in question was in his bedstand drawer, not on his person, and that it “wasn’t loaded.” At that point, it was incumbent upon County Court to either “conduct a further inquiry or give . . . defendant an opportunity to withdraw the plea” … . People v Reese, 2022 NY Slip Op 04194, Third Dept 6-30-22

Practice Point: When a defendant makes statements during the plea allocution which negate an element of the charged offense, the judge must make an inquiry or give the defendant the opportunity to withdraw the plea. The error need not be preserved for appeal.

 

You might also like
Copy Writer and Editor Was an Employee
ALTHOUGH THE VICTIM WAS SHOT AND THE BULLET PASSED THROUGH HIS LEG, THE PROOF REQUIREMENTS FOR SERIOUS PHYSICAL INJURY WERE NOT MET; ASSAULT SECOND CONVICTIONS REDUCED TO ASSAULT THIRD (THIRD DEPT).
SANDOVAL RULING THAT DEFENDANT COULD BE CROSS-EXAMINED ABOUT A 1991 BURGLARY WAS ERROR; DEFENDANT HAD AN UNBLEMISHED RECORD FOR THE LAST 23 YEARS; ERROR DEEMED HARMLESS (THIRD DEPT).
Town Planning Board’s Approval of the Installation of Wind Turbines Should Not Have Been Reversed—Board Properly Considered All the Factors Mandated by the Land Use Ordinance and Supreme Court Did Not Have the Authority to Substitute Its Judgment for the Board’s
A CAUSE OF ACTION FOR SUB-PAR PERFORMANCE OF A CONTRACT SOUNDS IN CONTRACT LAW, NOT NEGLIGENCE; NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (THIRD DEPT).
Breach of Contract Lawsuit Precluded by Claimant’s Failure to Comply With Notice Requirements Which Were Conditions Precedent—Alleged Misconduct by Defendant Did Not Prevent Compliance with Conditions Precedent—Conditions Precedent Not Waived by Defendant’s Participation In an Attempt to Resolve the Dispute
PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT SUBSTANTIALLY WEAKENED BUT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION; DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION.
FAMILY COURT, SUA SPONTE, SHOULD NOT HAVE DISMISSED INCARCERATED FATHER’S PETITION ALLEGING MOTHER’S NONCOMPLIANCE WITH AN ORDER MANDATING COMMUNICATION WITH THE CHILD WITHOUT HOLDING A HEARING (THIRD DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

HERE DEFENDANT PLED GUILTY TO A SUPERIOR COURT INFORMATION (SCI) AFTER HE HAD... THE UNEXPLAINED FAILURE TO SEE A VEHICLE BEFORE COLLIDING WITH IT, WITHOUT MORE,...