People v Blanis (Erasmia)

[*1] People v Blanis (Erasmia) 2015 NY Slip Op 50524(U) Decided on April 14, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 14, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Ling-Cohan, J.
570599/13

The People of the State of New York, Respondent,

against

Erasmia Blanis, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Laurie Peterson, J.), rendered May 21, 2013, convicting her, upon a plea of guilty, of disorderly conduct, and imposing sentence.

Per Curiam.

Judgment of conviction (Laurie Peterson, J.) rendered May 21, 2013, affirmed.

Under the particular circumstances of this case, we find the record sufficient to establish defendant's understanding and waiver of her Boykin rights (see Boykin v Alabama, 395 US 238 [1969]; People v Tyrell, 22 NY3d 359, 366 [2013]), and of her entry of an otherwise knowing and voluntary guilty plea. Defendant was charged with petit larceny and fifth degree criminal possession of stolen property, arising from allegations that she shoplifted items from a particular store. Approximately one month later, defendant, with counsel by her side, pleaded guilty to disorderly conduct, a violation, in exchange for a promised sentence of time served. 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 she was pleading guilty of her own free will and because she was in fact guilty, and that she understood that she was giving up her right to a 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 her Boykin rights (see People v Harris, 61 NY2d at 20-21; People v Bui, 44 Misc 3d 134[A], 2014 NY Slip Op 51187[U] [App Term. 1st Dept 2014], lv denied 24 NY3d 1085 [2014]).

Similarly unavailing is defendant's challenge to the facial sufficiency of the underlying accusatory instrument. Inasmuch as defendant knowingly waived the right to prosecution by information, the accusatory instrument is to be evaluated under the standard applicable to a misdemeanor complaint (see People v Dumay, 23 NY3d 518 [2014]). So viewed, the accusatory [*2]instrument was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of the charged offense of petit larceny (see Penal Law § 155.25). In this regard, the factual portion of the accusatory instrument alleged, inter alia, that a store employee observed defendant remove various items from a shelf, including wine glasses, "conceal" the items in a plastic bag, and "attempt to leave the store in possession of the property without paying for it" (see People v Olivo, 52 NY2d 309, 318 [1981]; People v Riso, 39 Misc 3d 129[A], 2013 NY Slip Op 50437[U] [App Term, 1st Dept 2013], lv denied 21 NY3d 946 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: April 14, 2015