People v. Diaz , 154 A.D.3d 440 ( 2017 )

People v Diaz (2017 NY Slip Op 06981)

People v Diaz

2017 NY Slip Op 06981

Decided on October 5, 2017

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 October 5, 2017
Acosta, P.J., Renwick, Webber, Oing, Moulton, JJ.

4596 2824/14 4595

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

v

Ruben Diaz, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.

Judgment, Supreme Court, New York County (Robert M. Stolz, J. at plea; Ronald A. Zweibel, J. at sentencing), rendered June 22, 2015, as amended September 25, 2015, convicting defendant of sexual abuse in the first degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.

Defendant's constitutional challenge to the 1996 predicate conviction supporting his second violent felony offender adjudication is unavailing (see People v Harris, 61 NY2d 9, 15-16 [1983]). The Court of Appeals has "never held that a plea is effective only if a defendant acknowledges committing every element of the pleaded-to offense, or provides a factual exposition for each element of the pleaded-to offense" (People v Seeber, 4 NY3d 780, 781 [2005] [citations omitted]). Since nothing in defendant's 1996 plea allocution negated an element of first-degree manslaughter or cast doubt on defendant's guilt or the voluntariness of the plea, there was no basis to invalidate it (see id.). Moreover, the elements of the crime, and defendant's accessorial liability (see Penal Law § 20.00), could be readily inferred from his responses during the allocution (see People v McGowen, 42 NY2d 905 [1977]).

We perceive no basis for reducing the sentence, including the 15-year term of postrelease supervision.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 5, 2017

CLERK