| People v Carroll |
| 2009 NY Slip Op 03413 [61 AD3d 1273] |
| April 30, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Javon G.Carroll, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Chantelle Schember of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered June 4, 2008in Clinton County, convicting defendant upon his plea of guilty of the crimes of assault in thefirst degree and criminal contempt in the second degree.
Defendant was charged by indictment with assault in the first degree, assault in the seconddegree and criminal possession of a weapon in the third degree. The charges arose from anincident in June 2007 during which defendant argued with the father of defendant's formergirlfriend and then struck him in the head, fracturing his skull and severely impairing his hearingin one ear. On October 19, 2007, Family Court issued an order of protection directing that,among other things, defendant was to have no telephone contact with his former girlfriend'smother. Defendant allegedly violated this order on November 6, 2007, resulting in a charge ofcriminal contempt in the second degree (see Penal Law § 215.50 [3]). Defendantlater pleaded guilty to the charges of assault in the first degree and criminal contempt in thesecond degree, waived his right to appeal and was sentenced to concurrent prison terms of oneyear and eight years, respectively, with five years of postrelease supervision.
Defendant now appeals, contending that his guilty plea was not voluntary. Even though hewaived the right to appeal and did not move to withdraw the plea or vacate the judgment ofconviction, defendant's challenge is preserved for our review because he made statements during[*2]the allocution that negated a material element of the crime ofcriminal contempt in the second degree (see People v Lopez, 71 NY2d 662, 666 [1988];People v Parara, 46 AD3d 936,937 [2007]; People v Pace, 284 AD2d 806, 807 [2001], lv denied 97 NY2d 686[2001]). When Supreme Court asked if he understood what he was pleading to, defendantreminded the court that he had gone to Florida after being released on bail on the initial chargesand then stated: "I'm saying I didn't understand that I wasn't suppose to have any contact withanyone. I was not served with any papers as far as that goes." This response raised questions asto whether defendant had been aware of the Family Court order and its prohibitions and, thus,whether he had the requisite intent when he attempted to speak with his former girlfriend'smother. Supreme Court questioned the meaning of defendant's response, but then changed thesubject and proceeded without any further inquiry about his knowledge of the Family Courtorder or his intent when he violated it. Absent such an inquiry, Supreme Court erred in acceptingdefendant's plea (see People vZabele, 53 AD3d 685, 686 [2008]; People v Ramirez, 45 AD3d 1108, 1108 [2007]; People v Pagan, 36 AD3d 1163,1165 [2007]).
Finally, while it appears that defendant knowingly pleaded guilty to assault in the firstdegree, this was an integrated plea and, therefore, both convictions must be reversed (see People v Ortega, 53 AD3d696, 697 [2008]; People vWolcott, 27 AD3d 774, 775-776 [2006]). In light of this determination, defendant'sremaining argument that his counsel was ineffective is academic.
Peters, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the judgment isreversed, on the law, plea vacated, and matter remitted to the Supreme Court for furtherproceedings not inconsistent with this Court's decision.