People v Foti (Gary)

[*1] People v Foti (Gary) 2015 NY Slip Op 50291(U) Decided on March 9, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570246/13

The People of the State of New York, Respondent,

against

Gary Foti, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Harold Adler, J.), rendered February 19, 2013, convicting him, upon a plea of guilty, of criminal facilitation in the fourth degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Harold Adler, J.), rendered February 19, 2013, 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 month after his arrest, defendant personally confirmed, in response to the court's questioning, that he was pleading guilty voluntarily, that he committed the underlying offense, and that he understood that he was giving up his 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.).

By failing to include the arraignment minutes in the record on appeal, defendant has failed to provide an adequate record for review of his claim that the misdemeanor complaint was not properly converted to an information (see People v Olivo, 52 NY2d 309, 320 [1981]). In any event, any hearsay defect in the accusatory instrument was waived by defendant's guilty plea (see People v Casey, 95 NY2d 354, 362-364 [2000]), and defendant does not dispute that the factual allegations contained in the accusatory instrument otherwise satisfied the pleading requirements of an information (see People v Kalin, 12 NY3d 225, 228 [2009]; People v Pearson, 78 AD3d 445 [2010], lv denied 16 NY3d 799 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur

Decision Date: March 09, 2015