People v. Lopez ( 2023 )

People v Lopez (2023 NY Slip Op 01054)

People v Lopez

2023 NY Slip Op 01054

Decided on February 23, 2023

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 and Entered: February 23, 2023
Before: Renwick, J.P., González, Shulman, Rodriguez, Higgitt, JJ.

Ind. No. 2330/17 Appeal No. 17391 Case No. 2019-3579

[*1]The People of the State of New York, Respondent,

v

Ricardo Lopez, Defendant-Appellant.

Twyla Carter, The Legal Aid Society, New York (Samuel Claflin of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Philip V. Tisne of counsel), for respondent.

Judgment, Supreme Court, New York County (Felicia A. Mennin, J.), rendered May 8, 2018, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of 3½ years, unanimously affirmed.

Defendant was correctly adjudicated a second felony drug offender previously convicted of a violent felony, and he did not meet his burden of establishing that his 2004 conviction was unconstitutionally obtained (see CPL 400.21[7][b]; People v Harris, 61 NY2d 9, 15 [1983]). The minutes of defendant's 2004 plea proceeding reveal that he pleaded guilty to assault in the second degree knowingly, intelligently, and voluntarily (see id. at 19-21; see also Boykin v Alabama, 395 US 239, 243 [1969]). Although the court did not enumerate all of defendant's rights during the plea colloquy, the record demonstrates that defendant "intelligently and understandingly rejected his constitutional rights" after consulting with counsel in order to take advantage of the negotiated preindictment plea offer (see People v Conceicao, 26 NY3d 375, 383 [2015]; People v Cepeda, 195 AD3d 477 [1st Dept 2021], lv denied 37 NY3d 991 [2021]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 23, 2023