People v Potts

[*1] People v Potts 2014 NY Slip Op 50846(U) Decided on May 30, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 30, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570295/12

The People of the State of New York, Respondent,

against

Christopher Potts, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Herbert J. Adlerberg, J.H.O.), rendered February 22, 2012, convicting him, upon a plea of guilty, of trespass, and imposing sentence.

Per Curiam.

Judgment of conviction (Herbert J. Adlerberg, J.H.O.), rendered February 22, 2012, reversed, on the law, accusatory instrument dismissed, and surcharge, if paid, remitted.

As the People now concede, defendant's conviction for trespass must be vacated since the plea record — which shows that the court did not directly address defendant and that defendant stood silent throughout — lacks the requisite "affirming showing" that defendant understood and waived his Boykin rights (see Boykin v Alabama, 395 US 238 [1969]; People v Tyrell, 22 NY3d 359 [2013]). Inasmuch as defendant has served his sentence, we dismiss the accusatory instrument in lieu of ordering a new trial, a disposition not opposed by the People.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 30, 2014