| People v Achaibar |
| 2008 NY Slip Op 02464 [49 AD3d 389] |
| March 18, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v LesterAchaibar, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Elizabeth A. Squires of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered August 12,2005, convicting defendant, upon his plea of guilty, of grand larceny in the third degree, andsentencing him to a term of 1 to 3 years, unanimously reversed, on the law, the plea vacated, thefull indictment reinstated, and the matter remanded to Supreme Court for further proceedings.Appeal from order, same court and Justice, entered on or about October 19, 2006, which denieddefendant's CPL 440.10 and 440.20 motion to vacate his conviction and set aside his sentence,unanimously dismissed as academic.
In order for a guilty plea to be entered knowingly, intelligently and voluntarily, a defendantmust be advised of the direct consequences of the plea (People v Ford, 86 NY2d 397, 403[1995]). Although there is no mandatory catechism, a minimum requirement for a valid plea isthat the defendant understands the direct penal consequences (see People v Catu, 4 NY3d 242 [2005]).
Here, the plea minutes show only that prior to the allocution the prosecutor, defense attorneyand court all agreed the disposition was an "open D," that the prosecutor intended to make anunspecified recommendation at sentencing, and that defense counsel expected the prosecutor'srecommended sentence to be probation. During the allocution, defendant acknowledged he waspleading guilty to a class D felony, but there was no discussion of the meaning of that term or ofthe term "open D," or any inquiry of defendant as to whether he understood the scope of possiblesentencing. While defendant may have understood that he might be receiving some period ofincarceration instead of probation, there is no indication anywhere in the record that he wasinformed of the range of sentences he could receive. Accordingly, we find the plea to be invalid.
This determination renders academic the other arguments defendant raises on his directappeal, and also renders academic the appeal from the denial of the article 440 motion.Concur—Lippman, P.J., Gonzalez, Sweeny and Catterson, JJ.