People v Mendez (Jose)

[*1] People v Mendez (Jose) 2014 NY Slip Op 51890(U) Decided on December 31, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 31, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
570938/12

The People of the State of New York, Respondent,

against

Jose Mendez, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Diana M. Boyar, J.), rendered August 31, 2012, convicting him, upon a plea of guilty, of attempted assault in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Diana M. Boyar, J.), rendered August 31, 2012, 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. During plea proceedings held a full three weeks after his arrest, defense counsel acknowledged that defendant agreed to waive "formal allocution," and defendant personally confirmed, in response to the court's questioning, that she was pleading guilty voluntarily, that she committed the underlying offense, and that she understood that she was giving up her right to trial. 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.).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 31, 2014