| People v Jenkins |
| 2012 NY Slip Op 03049 [94 AD3d 1474] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Theodore R.Jenkins, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), renderedJanuary 10, 2011. The judgment convicted defendant, upon his plea of guilty, of driving whileintoxicated, a class E felony, and aggravated unlicensed operation of a motor vehicle in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the plea is vacated and the matter is remitted to Erie County Court for further proceedings on thesuperior court information.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty offelony driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c][i]) and aggravated unlicensed operation of a motor vehicle in the first degree (§ 511 [3][a] [i]). At the time of the plea, County Court advised defendant that it could sentence him to aterm of incarceration of up to four years or to probation, but it did not indicate to defendant that itwas required to impose either a fine, or a term of incarceration, or both. At sentencing, the courtimposed a sentence of probation and a fine on each count. We conclude that the court's failure toadvise defendant of a direct consequence of his conviction requires vacatur of the plea.
Although "a trial court has no obligation to explain to defendants who plead guilty thepossibility that collateral consequences may attach to their criminal convictions, the court mustadvise a defendant of the direct consequences of the plea" (People v Catu, 4 NY3d 242, 244 [2005]). The Court of Appealsstated that "[d]irect consequences . . . are those that have 'a definite, immediate andlargely automatic effect on defendant's punishment' . . . The direct consequences ofa plea—those whose omission from a plea colloquy makes the plea per seinvalid—are essentially the core components of a defendant's sentence[, including]. . . a fine" (People vHarnett, 16 NY3d 200, 205 [2011], quoting People v Ford, 86 NY2d 397, 403[1995]). Thus, inasmuch as the court failed to advise defendant that he must either be fined, orincarcerated or both, we conclude that the plea was not knowingly, voluntarily and intelligentlyentered. We therefore reverse the judgment and vacate the plea, and we remit the matter toCounty Court for further proceedings on the superior court information (see People v Jordan, 67 AD3d1406, 1408 [2009]; People vWalker, 66 AD3d 1460 [2009]). Present—Smith, J.P., Fahey, Peradotto andLindley, JJ.