People v Rivera (David)

[*1] People v Rivera (David) 2015 NY Slip Op 50660(U) Decided on April 23, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Hunter, Jr., Ling-Cohan, JJ.
570716/13

The People of the State of New York, Respondent,

against

David Rivera, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Herbert J. Adlerberg, J.H.O), rendered June 6, 2013, convicting him, upon a plea of guilty, of aggravated unlicensed operation of a motor vehicle in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Herbert J. Adlerberg, J.H.O.), rendered June 6, 2013, reversed, on the law, and matter remanded for further proceedings on the accusatory instrument.

As the People now concede, defendant's conviction of third-degree aggravated unlicensed operation of a motor vehicle must be vacated since the plea record lacks the requisite "affirming showing" that defendant understood and waived his Boykin rights (see Boykin v Alabama, 395 US 238 [1969]; People v Tyrell, 22 NY3d 359 [2013]). Even though defendant has served his sentence, we find the dismissal remedy that he now seeks to be unwarranted in the circumstances of this case, since "for penological purposes it is relevant whether defendant committed the crime" (People v Allen, 39 NY2d 916, 918 [1976]). Should defendant commit another similar traffic misdemeanor, "it is important that the court be able to impose an enhanced sentence" (People v Roopchand, 107 AD2d 35, 38 [1985], affd 65 NY2d 837 [1985]; see Vehicle and Traffic Law § 511[2][a][i]; People v Murray, 46 Misc 3d 136[A], 2014 NY Slip Op 51891[U] [App Term, 1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: April 23, 2015