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DEFENDANT’S 2013 GUILTY PLEA WAS DEEMED DEFECTIVE BECAUSE THE JUDGE FAILED TO ENSURE THE DEFENDANT UNDERSTOOD THE CHARGE; BECAUSE THE 2013 CONVICTION WAS UNCONSTITUTIONALLY OBTAINED, IT CANNOT BE A BASIS, IN 2020, FOR SENTENCING THE DEFENDANT AS A PERSISTENT VIOLENT PREDICATE FELON; SENTENCE VACATED (FIRST DEPT).

The First Department, remanding the matter for resentencing, determined defendant should not have been sentenced as a persistent violent predicate felon based on a 2013 guilty plea because the plea to attempted burglary second was constitutionally invalid. In the plea allocution, defendant indicated he formulated the intent to steal after he entered the dwelling, prompting the need for further questioning by the judge. The intent to steal must be formulated before entry:

During the allocution on defendant’s 2013 plea to attempted burglary in the second degree, he asserted that, although he stole property from the subject dwelling, his intent at the time he unlawfully entered the premises was to tell its occupant to close the door. Because “the intent to commit a crime in the dwelling must be contemporaneous with the entry” under the burglary statute … , defendant’s statement that he formed the requisite intent “only after [he] had entered . . . the [premises] unlawfully” negated an element of the crime to which he pleaded guilty … . This statement triggered the court’s duty to make further inquiry in order to ensure that defendant understood “the nature of the charge and that the plea [was] intelligently entered” … . The court failed to do so. To the extent that the court conducted a further inquiry, its questions did no more than establish that defendant stole property once he was inside the dwelling, without refuting his statement that he had not intended to steal the property at the time of entry, nor did defendant confirm that he wished to waive a defense on that basis … . On this record, “we cannot conclude that defendant’s guilty plea was knowingly, voluntarily and intelligently made” … . Accordingly, since the requirements for enhanced sentencing have not been met, defendant’s sentence as a persistent violent felony offender must be vacated … . People v Stewart, 2024 NY Slip Op 05546, First Dept 11-12-24

Practice Point: Here it appears defense counsel demonstrated the 2013 guilty plea was unconstitutionally obtained because of an error by the sentencing judge during the allocution. Defense counsel then successfully argued the 2013 conviction could not be a basis for the 2020 sentencing of defendant as a persistent violent predicate felon. The current status of the 2013 conviction was not discussed.

 

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