| People v Aloi |
| 2010 NY Slip Op 08211 [78 AD3d 1546] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Steven Aloi,Appellant. (Appeal No. 1.) |
—[*1] Lori Rieman, District Attorney, Little Valley, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedOctober 6, 2008. The judgment convicted defendant, upon his plea of guilty, of unlawful imprisonmentin the first degree and attempted criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed as a matter ofdiscretion in the interest of justice and on the law, the plea is vacated, and the matter is remitted toCattaraugus County Court for further proceedings on the indictment.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon a guiltyplea, of unlawful imprisonment in the first degree (Penal Law § 135.10) and attempted criminalpossession of a weapon in the third degree (§§ 110.00, 265.02 [1]) and, in appeal No. 2,he appeals from the resentence imposed on that conviction. We agree with defendant in appeal No. 1that his plea must be vacated because it was not knowingly, intelligently and voluntarily entered. "A trialcourt has the constitutional duty to ensure that a defendant, before pleading guilty, has a fullunderstanding of what the plea connotes and its consequences" (People v Ford, 86 NY2d 397,402-403 [1995]). Here, it was not made clear during the plea colloquy whether the sentences to beimposed were to run consecutively or concurrently, and that patent ambiguity is further evidenced bythe parties' subsequent revisiting of that issue at sentencing, as well as by the fact that the courtresentenced defendant twice, once after the original sentencing and again by the resentence in appealNo. 2. Although defendant failed to preserve his contention for our review (see People v Moore, 59 AD3d 983[2009], lv denied 12 NY2d 857 [2009]), we nevertheless exercise our power to review it as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We therefore reversethe judgment in appeal No. 1, vacate defendant's plea of guilty, and remit the matter to County Courtfor further proceedings on the indictment. In view of our determination in appeal No. 1, we need notaddress defendant's remaining contentions therein, and we dismiss as moot the appeal from theresentence in appeal No. 2. We note with respect to appeal No. 2, however, that we agree withdefendant that the court erred in resentencing him in absentia (see CPL 380.40 [1]; 380.50[1]; People v Dennis [appeal No. 2], 6 AD3d 1211 [2004]). Present—Smith, J.P.,Lindley, Sconiers, Pine and Gorski, JJ.