People v Burns (Antonio)

[*1] People v Burns (Antonio) 2015 NY Slip Op 51001(U) Decided on July 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
571027/12

People of the State of New York, Respondent,

against

Antonio Burns, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Erika M. Edwards, J. at plea; Matthew A. Sciarrino, J. at sentencing), rendered October 1, 2012, convicting him, upon his plea of guilty, of petit larceny, and imposing sentence.

Per Curiam.

Judgment of conviction (Erika M. Edwards, J. at plea; Matthew A. Sciarrino, J. at sentencing), rendered October 1, 2012, affirmed.

In view of the defendant's knowing waiver of his right to prosecution by information, the facial sufficiency of the accusatory instrument must be assessed under the standard required of a misdemeanor complaint (see People v Dumay, 23 NY3d 51 [2014]). So viewed, the accusatory instrument was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of petit larceny (see Penal Law § 155.25), the charge to which defendant ultimately pleaded guilty. In this connection, the factual portion of the accusatory instrument alleged, inter alia, that defendant, while making a delivery inside a specified apartment building, entered into a restricted storage and freight area of the building - an area accessible only by traveling through two closed doors - and removed a bicycle without the permission or authority of the bicycle's owner. Defendant's larcenous intent is reasonably inferred from the surrounding circumstances of his actions, including entering an area to which he did not have lawful access and removing the bicycle (see People v Russell, 41 AD3d 1094, 1096 [2007], lv denied 10 NY3d 964 [2008]).

Defendant's argument that his guilty plea was invalid because the plea court failed to advise him of all of his constitutional rights under Boykin v Alabama, 395 US 238 (1969) is not preserved for appellate review, since he did not raise the issue prior to sentencing (see People v Jackson, 123 AD3d 634 [2014]). Furthermore, the narrow exception to the preservation rule is inapplicable here, since the defendant's plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v Tyrell, 22 NY3d 359, 364 [2013]; People v Lopez, 71 NY2d 662, 666 [1988]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: July 07, 2015