You are here: / / ON APPEAL DEFENDANT CHALLENGED THE VOLUNTARINESS OF HIS GUILTY PLEA BUT...
,

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.

 

You might also like
Even Records Demonstrated to Be Material and Necessary to the Prosecution or Defense of an Action Are Not Discoverable If Privileged and the Privilege Is Not Waived
PLAINTIFF VIOLATED THE VEHICLE AND TRAFFIC LAW BY MAKING A LEFT TURN DIRECTLY INTO DEFENDANT’S PATH OF TRAVEL WHEN DEFENDANT HAD A GREEN LIGHT; PLAINTIFF’S TESTIMONY THAT DEFENDANT WAS SPEEDING WAS NOT ENOUGH TO RAISE A QUESTION OF FACT (SECOND DEPT).
AT THE TIME THIS FORECLOSURE ACTION WAS COMMENCED, RPAPL 1304 REQUIRED THAT THE NOTICE OF DEFAULT INCLUDE THE NUMBER OF DAYS THE BORROWER HAD BEEN IN DEFAULT; A DISCREPENCY BETWEEN THE DATE OF THE DEFAULT IN THE 90-DAY NOTICE (JULY 2009) AND THE DATE IN THE NOTICE REQUIRED BY THE MORTGAGE AND IN THE COMPLAINT (MAY 2011) CREATED A QUESTION OF FACT WHETHER THE NOTICE WAS DEFECTIVE ON ITS FACE (SECOND DEPT). ​
THE EXECUTIVE ORDERS SUSPENDING OR MODIFYING THE LAW IN RESPONSE TO COVID-19 TOLLED THE TIME-LIMIT FOR FILING AN APPEAL UNTIL WITHIN 30 DAYS OF NOVEMBER 2, 2020 (SECOND DEPT).
THE SECOND DEPT USED THIS OPINION AS A VEHICLE TO EXPLAIN THE COMPLEX PROOF REQUIREMENTS FOR SUMMARY JUDGMENT MOTIONS BROUGHT IN FORECLOSURE ACTIONS, EMPHASIZING THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).
FEDERAL TAX RETURNS AND EMAILS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WITHIN THE MEANING OF CPLR 3211 (A)(1); THE MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE BANK IN THIS FORECLOSURE ACTION SENT THE RPAPL 1304 NOTICE TO BOTH BORROWERS IN THE SAME ENVELOPE, A VIOLATION OF THE “SEPARATE ENVELOPE” RULE (SECOND DEPT).
REQUESTS FOR RECORDS OF SURGICAL PROCEDURES PERFORMED ON NON-PARTIES AND RECORDS OF COMPLAINTS AGAINST DEFENDANT SURGEON SHOULD NOT HAVE BEEN DENIED.

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE CRITERIA FOR “A CONTINUING COURSE OF SEXUAL CONTACT” WERE NOT... RESIDENTS OF A NURSING HOME ALLEGING INADEQUATE STAFFING, UNPALATABLE FOOD,...