PEOPLE v. STEWART (2024)

Judgment, Supreme Court, New York County (Steven M. Statsinger, J.), rendered January 6, 2020, convicting defendant, upon his pleas of guilty, of three counts of attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to three concurrent prison terms of 12 years to life, unanimously modified, on the law, to vacate the sentence and to remand for further sentencing proceedings, and otherwise affirmed.

Defendant's sentencing as a persistent violent predicate felon based on his 2013 plea conviction was improper because that conviction was unconstitutionally obtained (see People v. Konstantinides, 14 N.Y.3d 1, 15, 896 N.Y.S.2d 284, 923 N.E.2d 567 [2009]).  During the allocution on defendant's 2013 plea to attempted burglary in the second degree, he asserted that, although he stole property from the subject dwelling, his intent at the time he unlawfully entered the premises was to tell its occupant to close the door.  Because “the intent to commit a crime in the dwelling must be contemporaneous with the entry” under the burglary statute (People v. Lewis, 5 N.Y.3d 546, 548 n. 1, 807 N.Y.S.2d 1, 840 N.E.2d 1014 [2005];  see People v. Gaines, 74 N.Y.2d 358, 362–363, 547 N.Y.S.2d 620, 546 N.E.2d 913 [1989]), defendant's statement that he formed the requisite intent “only after [he] had entered ․ the [premises] unlawfully” negated an element of the crime to which he pleaded guilty (People v. Rivera, 189 A.D.3d 551, 133 N.Y.S.3d 824 [1st Dept. 2020]).  This statement triggered the court's duty to make further inquiry in order to ensure that defendant understood “the nature of the charge and that the plea [was] intelligently entered” (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]).  The court failed to do so.  To the extent that the court conducted a further inquiry, its questions did no more than establish that defendant stole property once he was inside the dwelling, without refuting his statement that he had not intended to steal the property at the time of entry, nor did defendant confirm that he wished to waive a defense on that basis (see e.g. People v. Dozier, 227 A.D.3d 482, 482, 209 N.Y.S.3d 401 [1st Dept. 2024];  People v. Muniz–Cayetano, 186 A.D.3d 1169, 1170–1172, 131 N.Y.S.3d 330 [1st Dept. 2020], lv denied 36 N.Y.3d 1052, 140 N.Y.S.3d 891, 164 N.E.3d 978 [2021]).  On this record, “we cannot conclude that defendant's guilty plea was knowingly, voluntarily and intelligently made” (People v. McCollum, 23 A.D.3d 199, 200, 803 N.Y.S.2d 80 [1st Dept. 2005]).  Accordingly, since the requirements for enhanced sentencing have not been met, defendant's sentence as a persistent violent felony offender must be vacated (see People v. Tilman, 114 A.D.2d 799, 801, 495 N.Y.S.2d 50 [1st Dept. 1985]).

Because the People met their burden of proving beyond a reasonable doubt the existence of defendant's separate violent felony conviction in 2005 (see CPL 400.21[7][a]), we remand the matter to Supreme Court for defendant to be resentenced as a second violent felony offender (see People v. Moore, 228 A.D.3d 491, 493, 211 N.Y.S.3d 77 [1st Dept. 2024]).

In light of the foregoing, we need not reach the other arguments advanced by defendant.