PEOPLE v. ACHAIBAR (2008)

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered August 12, 2005, convicting defendant, upon his plea of guilty, of grand larceny in the third degree, and sentencing him to a term of 1 to 3 years, unanimously reversed, on the law, the plea vacated, the full indictment reinstated, and the matter remanded to Supreme Court for further proceedings.   Appeal from order, same court and Justice, entered on or about October 19, 2006, which denied defendant's CPL 440.10 and 440.20 motion to vacate his conviction and set aside his sentence, unanimously dismissed as academic.

 In order for a guilty plea to be entered knowingly, intelligently and voluntarily, a defendant must be advised of the direct consequences of the plea (People v. Ford, 86 N.Y.2d 397, 403, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ).   Although there is no mandatory catechism, a minimum requirement for a valid plea is that the defendant understands the direct penal consequences (see People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 [2005] ).

 Here, the plea minutes show only that prior to the allocution the prosecutor, defense attorney and court all agreed the disposition was an “ open D,” that the prosecutor intended to make an unspecified recommendation at sentencing, and that defense counsel expected the prosecutor's recommended sentence to be probation.   During the allocution, defendant acknowledged he was pleading guilty to a class D felony, but there was no discussion of the meaning of that term or of the term “open D,” or any inquiry of defendant as to whether he understood the scope of possible sentencing.   While defendant may have understood that he might be receiving some period of incarceration instead of probation, there is no indication anywhere in the record that he was informed of the range of sentences he could receive.   Accordingly, we find the plea to be invalid.

This determination renders academic the other arguments defendant raises on his direct appeal, and also renders academic the appeal from the denial of the article 440 motion.