| People v Harris |
| 2014 NY Slip Op 05814 |
| Decided on August 14, 2014 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on August 14, 2014
Gonzalez, P.J., Acosta, DeGrasse, Freedman, Richter, JJ.
12941
v
Henry Harris, Defendant-Appellant.
Steven Banks, The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Jordan K. Hummel of counsel), for respondent.
Judgment, Supreme Court, Bronx County (George Villegas, J.), rendered December 7, 2011, convicting defendant, upon his plea of guilty, of disorderly conduct, and sentencing him to a conditional discharge and a $120 fine, unanimously reversed, on the law and as a matter of discretion in the interest of justice, to the extent of vacating the plea, dismissing the counts of the accusatory instrument charging harassment in the second degree and menacing in the third degree, and remanding for further proceedings on the remaining charges.
Defendant's plea allocution did not establish a factual basis for the offense, or establish that he understood any of the rights he was giving up by pleading guilty. Since the allocution was completely inadequate, we conclude that the plea should be
vacated in the interest of justice (see People v Vickers, 84 AD3d 627 [1st Dept 2011]).
In addition, the accusatory instrument was insufficient as a matter of law with regard to the harassment and menacing charges. The allegation that defendant pointed his finger in a shooting motion and stated, "I'm going to shoot you," without any indication that defendant was armed at the time, did not set forth an imminent threat of harm to the complainant. Nor were any facts alleged showing the statement should have been taken seriously (see People v Dietze, 75 NY2d 47, 53-54 [1989]). However, the other charges were sufficiently stated.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: AUGUST 14, 2014
CLERK