Gun conviction tossed over faulty plea

A state appeals court has reversed a gun conviction and dismissed the case because of insufficient evidence and an involuntary guilty plea.

Defendant David Flores pleaded guilty in March 2019 in Southeast Town Court, in Putnam County of fourth-degree criminal possession of a weapon.

In a decision released May 24 by the Appellate Division of state Supreme Court, Second Department, the conviction was reversed, and the accusatory instrument was dismissed.

Flores was charged, in separate informations with fourth-degree criminal possession of a weapon and third-degree criminal possession of a forged instrument.

Under the terms of a plea agreement, Flores pleaded guilty to fourth-degree criminal possession of a weapon and Flores has since completed his sentence.

Flores’ assigned attorney filed an Anders brief to the Second Department claiming there were no non-frivolous grounds for an appeal. The Second Department ruled that nonfrivolous issues existed and assigned attorney David A. Rosenberg to represent Flores in the appeal.

Rosenberg  submitted a brief claiming that the accusatory instrument was facially insufficient and that defendant’s plea was involuntary because the town justice failed to ensure that Flores was made aware of the Boykin rights he was waiving by pleading guilty and failed to inform Flores of the possible immigration consequences of his guilty plea.

Named for a 1969 Supreme Court of the United States decision , in Boykin v. Alabama, Boykin rights prohibit compulsory self-incrimination, provide the right to a jury trial, and the right to confront accusers.

The Second Department evaluated the accusatory instrument charging Flores with fourth-degree criminal possession of a weapon, which accused him of possessing an imitation pistol “with intent to use the same unlawfully against another.”

The deputy sheriff who charged Flores “only observed the imitation pistol ‘holstered on (Flores’) side,’ hardly an allegation of planned unlawful use, as illustrated by the apparent inability of the deputy sheriff to suss out what defendant’s unlawful intent was,” the court wrote.

“We find that the conclusory allegation of unlawful intent renders the charge insufficiently alleged, requiring reversal of defendant’s conviction and dismissal of the accusatory instrument,” the Second Department wrote.

Because Flores already completed his sentence, there is no purpose in reinstating the pre-plea charges, the court ruled.

“Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed,” the Second Department wrote.

[email protected] / (585) 232-2035