        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

573
KA 11-00288
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

THEODORE R. JENKINS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered January 10, 2011. The judgment convicted
defendant, upon his plea of guilty, of driving while intoxicated, a
class E felony, and aggravated unlicensed operation of a motor vehicle
in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated and the matter is
remitted to Erie County Court for further proceedings on the superior
court information.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of felony driving while intoxicated (Vehicle
and Traffic Law § 1192 [3]; § 1193 [1] [c] [i]) and aggravated
unlicensed operation of a motor vehicle in the first degree (§ 511 [3]
[a] [i]). At the time of the plea, County Court advised defendant
that it could sentence him to a term of incarceration of up to four
years or to probation, but it did not indicate to defendant that it
was required to impose either a fine, or a term of incarceration, or
both. At sentencing, the court imposed a sentence of probation and a
fine on each count. We conclude that the court’s failure to advise
defendant of a direct consequence of his conviction requires vacatur
of the plea.

     Although “a trial court has no obligation to explain to
defendants who plead guilty the possibility that collateral
consequences may attach to their criminal convictions, the court must
advise a defendant of the direct consequences of the plea” (People v
Catu, 4 NY3d 242, 244). The Court of Appeals stated that “[d]irect
consequences . . . are those that have ‘a definite, immediate and
largely automatic effect on defendant’s punishment’ . . . The direct
consequences of a plea—those whose omission from a plea colloquy makes
                                 -2-                          573
                                                        KA 11-00288

the plea per se invalid—are essentially the core components of a
defendant’s sentence[, including] a fine” (People v Harnett, 16 NY3d
200, 205, quoting People v Ford, 86 NY2d 397, 403). Thus, inasmuch as
the court failed to advise defendant that he must either be fined, or
incarcerated or both, we conclude that the plea was not knowingly,
voluntarily and intelligently entered. We therefore reverse the
judgment and vacate the plea, and we remit the matter to County Court
for further proceedings on the superior court information (see People
v Jordan, 67 AD3d 1406, 1408; People v Walker, 66 AD3d 1460).




Entered:   April 20, 2012                      Frances E. Cafarell
                                               Clerk of the Court
