People v Jiminez (Edelberto)

[*1] People v Jiminez (Edelberto) 2015 NY Slip Op 50371(U) Decided on March 26, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
13-412

The People of the State of New York, Respondent,

against

Edelberto Jiminez, 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 April 10, 2013, convicting him, upon his plea of guilty, of harassment in the second degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Diana M. Boyar, J.), rendered April 10, 2013, affirmed.

Following an altercation on October 1, 2011, defendant was charged with menacing in the second degree, criminal possession of a weapon in the fourth degree and harassment in the second degree. On April 10, 2012, defendant entered a plea of guilty to the charge of second degree menacing in full satisfaction of the accusatory instrument. Pursuant to the plea agreement, if defendant was not arrested during the next year and complied with a one-year order of protection, he would be allowed to replead to harassment in the second degree and receive a sentence of time served, and a final order of protection. The plea allocution thoroughly advised defendant of the rights he was waiving by pleading guilty (see Boykin v Alabama, 395 US 238 [1969]).

On April 10, 2013, upon the People's acknowledgment that defendant complied with the conditions of his plea, the court, as agreed, vacated his guilty plea and permitted defendant to plead guilty to the charge of second degree harassment (Penal Law § 240.26), a violation, in return for the promised sentence of time served and an order of protection. 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 and because he was in fact guilty, and that he understood that he was giving up his right to a trial.

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 [*2][1969]; People v Tyrell, 22 NY3d 359, 366 [2013]), and of his entry of an otherwise knowing and voluntary guilty plea. 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, after consultation with active and able counsel, "clearly understood the nature of the charges to which he was pleading and willingly entered his plea to obtain the benefit of the bargain he had struck" (People v Goldstein, 12 NY3d 295, 301 [2009]), and "intelligently and understandingly rejected his [Boykin] rights" (see Tyrell at 365).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: March 26, 2015