People v. Teron , 29 N.Y.S.3d 175 ( 2016 )

People v Teron (2016 NY Slip Op 03598)

People v Teron

2016 NY Slip Op 03598

Decided on May 5, 2016

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 May 5, 2016
Sweeny, J.P., Saxe, Richter, Gische, JJ.

15947 15946

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

v

Jay Jay Teron, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Richard Joselson of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Jordan K. Hummel of counsel), for respondent.

Judgment, Supreme Court, Bronx County (George R. Villegas, J. at plea and original sentencing), rendered January 17, 2012, as amended April 12, 2012 (John S. Moore, J. at resentencing), convicting defendant of unlicensed operation of a motor vehicle, and sentencing him to time served, unanimously affirmed.

Initially, we need not address the issue of whether defendant's challenge to his plea has been preserved, as we consider this claim pursuant to our interest of justice jurisdiction (CPL 470.15[3][c]).

Defendant was not informed by the court of any of the rights he was waiving by pleading guilty (see Boykin v Alabama, 395 US 238 [1969]). While "the failure to recite the Boykin rights does not automatically invalidate an otherwise voluntary and intelligent plea . . . the record as a whole [must] affirmatively show [] that the defendant intentionally relinquished those rights" in order for the plea to be validly entered (People v Conceicao, 26 NY3d 375, 379 [2015]). In this case, since the record is devoid of any indicia that would meet this standard, we find that defendant's Boykin rights were violated.

Nevertheless, in cases where "the record fails to establish a knowing and intelligent waiver," dismissal may not be "the appropriate corrective action" (id. at 379, n1; see also People v Allen, 39 NY2d 916, 918 [1976]). The proper remedy should be either an affirmance of the conviction or a vacatur of the plea and remand for further proceedings.

Defendant has completed his sentence of time served and a fine but has not set forth sufficient grounds to dismiss the accusatory instrument. Additionally, defendant affirmatively states that he does not seek vacatur of his plea and a remand to the trial court.

Accordingly, the judgment of conviction is affirmed.

The Decision and Order of this Court entered herein on January, 21, 2016 is hereby recalled and vacated (see M-496 decided simultaneously herewith).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 5, 2016

DEPUTY CLERK