People v Johnson (Jasmine)

[*1] People v Johnson (Jasmine) 2015 NY Slip Op 51023(U) Decided on July 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
570680/12

The People of the State of New York, Respondent,

against

Jasmine Johnson, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Diana M. Boyar, J.), rendered May 23, 2012, convicting her, upon a plea of guilty, of assault in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Diana M. Boyar, J.), rendered May 23, 2012, 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 her entry of an otherwise knowing and voluntary guilty plea. As a result of her involvement in an altercation in a specified McDonald's restaurant, defendant was charged with third degree assault, fourth degree criminal mischief and second degree harassment. Approximately one month later, defendant, with counsel by her side, pleaded guilty to third degree assault in exchange for a sentence of seven days in jail and a final order of protection. In defendant's presence, defense counsel, after stating that he discussed the plea with defendant and unsuccessfully advised her to reject the offer, acknowledged that defendant agreed to waive "formal allocution." Defendant then 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 where the People would have the burden to prove her guilt beyond a reasonable doubt, and the right to present a defense.

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, after consultation with active and able counsel, "intelligently and understandingly rejected h[er] constitutional rights" (id. at 366).

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 [*2]misdemeanor complaint (see People v Dumay, 23 NY3d 518 [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 assault in the third degree (see Penal Law § 120.00[1]), the offense to which she ultimately pleaded guilty. The "physical injury" element of the charged crime was satisfied by allegations that defendant "thr[e]w a glass . . . hitting [the victim] in the face and causing swelling and bruising." Based on these allegations, "a jury could certainly infer that the victim felt substantial pain" (People v Henderson, 92 NY2d 677, 680 [1999]; see People v Mercado, 94 AD3d 502 [2012], lv denied 19 NY3d 999 [2012]; People v Lang, 81 AD3d 538 [2011], lv denied 16 NY3d 896 [2011]), a term which simply means "more than slight or trivial pain" (see Penal Law § 10.00[9]; see People v Chiddick, 8 NY3d 445, 447 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: July 15, 2015