People v Suarez

People v Suarez 2015 NY Slip Op 07743 Decided on October 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 October 22, 2015
Tom, J.P., Andrias, Moskowitz, Kapnick, JJ.
15922 1504/11

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

v

Gilbert Suarez, Defendant-Appellant.

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

Cyrus R. Vance, Jr., District Attorney, New York (Joshua L. Haber of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered October 9, 2012, as amended October 15, 2012, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first and third degrees, and sentencing him to concurrent terms of 8 years, unanimously affirmed.

Defendant's argument that his guilty plea was invalid because the court misstated one of his rights under Boykin v Alabama (395 US 238 [1969]) is unpreserved (see e.g. People v Jackson, 114 AD3d 807 [2d Dept 2014], lv denied 22 NY3d 1199 [2014]), and we decline to review it in the interest of justice. Unlike the situation in People v Tyrell (22 NY3d 359, 364 [2013]), defendant had the opportunity to raise the issue, and the deficiency was far short of a mode of proceedings error. As an alternative holding, we find that the record establishes the voluntariness of the plea (see Tyrell, 22 NY3d at 365; see also People v Harris, 61 NY2d 9, 16-19 [1983]). The plea court's slip of the tongue in rendering the right to confront witnesses as the essentially similar "right to be confronted by" witnesses could not have undermined the validity of the plea.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 22, 2015

CLERK