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ON APPEAL DEFENDANT CHALLENGED THE VOLUNTARINESS OF HIS GUILTY PLEA BUT THE PLEA MINUTES WERE NOT AVAILABLE; DEFENDANT DID NOT SHOW THAT RECONSTRUCTION OF THE 2013 PLEA PROCEEDING WAS IMPOSSIBLE; THEREFORE THE MATTER WAS REMITTED FOR A RECONSTRUCTION HEARING (SECOND DEPT),

The Third Department determined a reconstruction hearing, rather than reversal of defendant’s conviction by guilty plea in 2013, was required before the appellate court could rule on the voluntariness of the plea. The transcript of the plea proceeding was not available:

Defendant also challenges the voluntariness of his guilty plea, which he claims was defective in several respects. However, the transcript of the … plea proceeding is unavailable, and we are therefore unable to determine whether defendant’s plea was knowing and voluntary. Without the plea minutes, we are also unable to conclusively determine whether defendant preserved his claim with an appropriate postallocution motion or “whether his claim falls within the narrow exception to the preservation doctrine”. We therefore hold the case in abeyance, reserve decision, and remit the matter to County Court for a reconstruction hearing with respect to the plea proceedings … . Contrary to his claim, defendant is not entitled to summary reversal as he has not demonstrated that reconstruction is impossible … . People v Cox, 2023 NY Slip Op 05552, Second Dept 11-1-23

Practice Point: Here defendant pled guilty in 2013 and challenged the voluntariness of his plea on appeal. The minutes of the plea proceeding were not available and defendant argued he was entitled to reversal. Because the defendant did not show that reconstruction of the plea proceeding was impossible, the matter was remitted for a reconstruction hearing.

 

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