| People v Sanchez |
| 2015 NY Slip Op 01979 [126 AD3d 482] |
| March 12, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Javier Sanchez, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Kristina Schwarz ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Jordan K. Hummel of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Edgar G. Walker, J.), rendered June 28,2012, convicting defendant, upon his plea of guilty, of operating a motor vehicle whileunder the influence of alcohol, and sentencing him to a conditional discharge and a $500fine, unanimously reversed, on the law, the plea vacated, and the matter remanded forfurther proceedings.
The record fails to demonstrate that defendant was informed of any of theconstitutional rights that he was waiving by pleading guilty (see Boykin vAlabama, 395 US 238 [1969]) or that he consulted with counsel about theconstitutional consequences of his guilty plea (People v Tyrell, 22 NY3d 359, 361 [2013]; People v Miller, 113 AD3d573 [1st Dept 2014]). The only question addressed by the court to defendant waswhether he wanted to plead guilty. Defense counsel then waived "further allocution," andthe court imposed sentence.
The People's reliance on People v Perez (116 AD3d 511 [1st Dept 2014], lvgranted 24 NY3d 1004 [2014]), where this Court upheld a waiver of "formalallocution" regarding a plea to disorderly conduct resulting in a fine, is misplaced. Unlikedisorderly conduct, driving while intoxicated is not a petty offense. Such a conviction isa misdemeanor rather than a traffic infraction, it affects a defendant's driving privileges,and it can be the basis for elevating a subsequent similar charge to a felony. Furthermore,in Perez there was more in the record than here to show consultation with counselconcerning the plea. Concur—Gonzalez, P.J., Tom, Richter and Kapnick, JJ.