NY appeals court reverses burglary conviction over plea issue

A state appeals court has reversed a burglary conviction because of an improper plea colloquy.

Defendant Kevin Small pleaded guilty in November 2023 before state Supreme Court Justice Alex R. Renzi to first-degree burglary.

Small appealed and the Appellate Division of state Supreme Court, Fourth Department, reversed the conviction, and vacated the plea.

The court ruled that Small’s waiver of the right to appeal was invalid.

“Supreme Court’s oral colloquy was overbroad inasmuch as the court told defendant that his waiver of the right to appeal marks the ‘end of the case,’” according to the decision.

“Although the record establishes that defendant executed a written waiver of the right to appeal, the written waiver does not cure the deficient oral colloquy because the court did not inquire of defendant whether he understood the written waiver or whether he had read the waiver before signing it,” the court wrote.

Small’s appellate attorney, Stephanie M. Stare, argued that the plea was invalid because the plea allocution negated an element of the crime to which he pleaded guilty.

But the defense never moved to withdraw his plea, and he never sought to vacate the judgment of conviction.

“This case, however, falls within the rare exception to the preservation requirement … Burglary in the first degree requires that a person knowingly enter or remain unlawfully in a dwelling with the intent to commit a crime therein,” the court wrote.

Twice during the factual allocution Small indicated that he did not intend to commit any crimes when he entered the house in question and, while he admitted that he intended to retrieve his own property, retrieving one’s own property does not establish larcenous intent, the court wrote.

“Although the court attempted to conduct an inquiry following defendant’s insistence that he did not intend to commit any crimes when he entered the house, such inquiry was insufficient,” the court wrote.

“The court therefore erred in accepting defendant’s guilty plea,” the court ruled.

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