People v Cerpa (David)

[*1] People v Cerpa (David) 2015 NY Slip Op 50875(U) Decided on June 10, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570195/13

The People of the State of New York, Respondent, -

against

David Cerpa, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Melissa A. Crane, J.), rendered February 4, 2013, convicting him, upon a plea of guilty, of theft of services, and imposing sentence.

Per Curiam.

Judgment of conviction (Melissa A. Crane, J.), rendered February 4, 2013, reversed, on the law, accusatory instrument dismissed, and surcharge, if paid, remitted.

As the People now concede, defendant's conviction 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]). Inasmuch as defendant has served his sentence, we dismiss the accusatory instrument in lieu of ordering a new trial, a disposition unopposed by the People.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 10, 2015