People v Ottley (Dexter)

[*1] People v Ottley (Dexter) 2014 NY Slip Op 51128(U) Decided on July 24, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 24, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570961/11

The People of the State of New York, Respondent,

against

Dexter Ottley, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Marcy S. Friedman, J.), rendered October 30, 2011, convicting him, upon a plea of guilty, of criminal possession of marihuana in the fifth degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Marcy S. Friedman, J.), rendered October 30, 2011, affirmed.

Under the particular circumstances of this case, we find the record sufficient to establish defendant's understanding and waiver of his Boykin rights (see Boykin v Alabama, 395 US 238 [1969]; People v Tyrell, 22 NY3d 359, 366 [2013]), and of his entry of an otherwise knowing and voluntary guilty plea. In defendant's presence, defense counsel acknowledged that defendant agreed to waive "formal allocution," and defendant personally confirmed, in response to the court's questioning, that he was pleading guilty of his own free will, that he committed the underlying offense, and that he understood that he was giving up his right to a trial and the right to confront witnesses (People v Perez, 116 AD3d 511 [2014]; see People v Jackson, 114 AD3d 807 [2014]). Manifestly, this case does not involve the type of "silent record" which, as Tyrell cautions, is insufficient to "overcome the presumption against waiver by a defendant of constitutionally guaranteed protections" (People v Tyrell, 22 NY3d at 365, quoting People v Harris, 61 NY2d 9, 17 [1983]). To the contrary, the plea record, taken as a whole and read in context, amply shows that defendant "intelligently and understandingly rejected his [Boykin] rights" (id.). Further, contrary to defendant's apparent contention, the fact that the court did not inform him of his right to be prosecuted on an information did not render the plea involuntary or unknowing, particularly where defendant, through counsel, expressly waived that right on the record.

We have considered and rejected defendant's present challenge to the facial sufficiency of the accusatory instrument.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: July 24, 2014