People v. Austin , 20 N.Y.S.3d 891 ( 2015 )

People v Austin (2015 NY Slip Op 09384)

People v Austin

2015 NY Slip Op 09384

Decided on December 22, 2015

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 December 22, 2015
Tom, J.P., Renwick, Saxe, Kapnick, JJ.

16467 2865/10

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

v

Scott M. Austin, Defendant-Appellant.

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

Cyrus R. Vance, Jr., District Attorney, New York (Manu K. Balachandran of counsel), for respondent.

Judgment, Supreme Court, New York County (Lynn R. Kotler, J. at plea; Patricia M. Nunez, J. at sentencing), rendered September 6, 2012, as amended November 19, 2012, convicting defendant of grand larceny in the third degree, and sentencing him to a term of one year, unanimously affirmed.

Defendant's claim that his plea allocution was deficient because the court omitted the word "jury" from its reference to giving up the right to a trial is a claim requiring preservation (see People v Jackson, 123 AD3d 634 [1st Dept 2014], lv denied 25 NY3d 1201 [2015]), and we decline to review this unpreserved claim in the interest of justice. As an alternative holding, we find that the record establishes the voluntariness of the plea

(see People v Tyrell, 22 NY3d 359, 365 [2013]; People v Harris,61 NY2d 9, 16-19 [1983]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 22, 2015

CLERK