People v Claudio (Rudy)

[*1] People v Claudio (Rudy) 2015 NY Slip Op 50898(U) Decided on June 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570717/13

People of the State of New York, Respondent,

against

Rudy Claudio, Defendant-Appellant.

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

Per Curiam.

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

Following an altercation on March 1, 2012, defendant was charged with menacing in the second degree and criminal possession of a weapon in the fourth degree. On June 12, 2012, defendant entered a plea of guilty to the charge of second degree menacing in full satisfaction of the accusatory instrument. Pursuant to the terms of the plea agreement, if defendant was not arrested during the next year, completed an anger management program and complied with a one-year order of protection, he would be allowed to replead to disorderly conduct and receive a sentence of time served, and a final order of protection. The plea allocution established defendant's understanding of the rights he was waiving by pleading guilty (see Boykin v Alabama, 395 US 238 [1969]).

On June 21, 2013, upon the People's consent, the court, as agreed, vacated the guilty plea and permitted defendant to plead guilty to the charge of disorderly conduct (Penal Law § 240.20), a violation, in return for the bargained-for sentence. 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 freely and voluntarily 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 [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 [*2]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, knowingly and voluntarily entered the original plea, after being fully apprised of the rights he was waiving by pleading guilty; and that defendant made a voluntary and intelligent choice to replead to a lesser charge "to obtain the benefit of the bargain he had struck" (People v Hildinghohlson, __ Misc 3d __, 2015 NY Slip Op 25122 [App Term, 1st Dept 2015], quoting People v Goldstein, 12 NY3d 295, 301 [2009]; see Nesby v Senkowski, 1994 WL 613322, *2-3. 1994 US Dist LEXIS 15768, *6-8 [SD NY, Nov. 7, 1994, No. 93 Civ 6114 (JFK)]).

Similarly unavailing is defendant's challenge to the facial sufficiency of the underlying accusatory instrument. Defendant does not dispute that he waived prosecution by information (see People v Dumay, 23 NY3d 518 [2014]), or that the accusatory instrument described "facts of an evidentiary character" (CPL 100.15[3]) demonstrating "reasonable cause" to believe (CPL 100.40[4][b]) that he was guilty of the charged crime of criminal possession of a weapon in the fourth degree (Penal Law §265.01[1]). The court thus had jurisdiction over defendant and was authorized to accept defendant's plea to disorderly conduct, "a lesser crime not included in the accusatory instrument" (People v Keizer, 100 NY2d 114, 117—118 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 17, 2015