Tag: appellate division vacates plea

The Defendant was charged with, inter alia, unauthorized use of a vehicle in the third degree. It is alleged that the Defendant went into someone else’s car and stole their wallet… The People do not give us much more information other than that. The issue here becomes whether the charging instrument was facially sufficient or, put another way, whether the charging instrument alleges facts of an evidentiary nature supporting or tending to support the charge and provides reasonable cause to believe the defendant committed the offense charged. See CPL 100.15(3) and CPL 100.40(4). The Court notes that there are no allegations that the defendant took any action or interfered with the victim’s possession or use of the car. The instrument charging the defendant did not allege or demonstrate that the defendant took any sort of control over the vehicle but merely entered the vehicle to obtain the victim’s wallet.

New York Criminal Defense Attorneys, it is important to note that an argument concerning an accusatory instrument’s facial sufficiency is jurisdictional and must be reviewed even if the defendant failed to raise it in the Criminal Court. Pp. 2 (citing People v. Alejandro, 70 NY2d 133 (1987)). Thus, defendant’s claim was not forfeited upon his plea of guilty. Id. (citing People v. Dreyden, 15 NY3d 100, 103 (2010); People v. Konieczny, 2 NY3d 569, 573 (2004). Here the allegations presented in the charging instrument did not allege anything in regards to the defendant taking control, driving, moving or interfering with the use of the  victim’s car in any matter. Although the allegations are of a nature that the defendant entered the car, the charging instrument did not provide reasonable cause to believe that the defendant had engaged in the unauthorized use of a vehicle in the third degree, to which he plead guilty. “[T]he judgment of conviction is reversed, defendant’s guilty plea is vacated, the count of the accusatory instrument charging defendant with unauthorized use of a vehicle in the third degree is dismissed, the remaining counts of the instrument are reinstated, and the matter is remitted to the Criminal Court for all further proceedings on the remaining counts of the accusatory instrument.” Pp. 4.

The case is The People v. Gavrilov, 2013-135 K CR, NYLJ 1202741921574, at 1 (App. Tm., 2nd, Decided October 21, 2015) accessible at httpwww.newyorklawjournal.comid=1202741921574The-People-v-Gavrilov-2013135-K-CR#ixzz3r5owGKud