People v Higgins (Xavier)

[*1] People v Higgins (Xavier) 2016 NY Slip Op 50628(U) Decided on April 20, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570043/14

The People of the State of New York, Respondent,

against

Xavier Higgins, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Tamiko A. Amaker, J. at initial plea; Steven M. Statsinger, J. at re-plea and sentencing), rendered October 17, 2013, convicting him, upon a plea of guilty, of harassment in the second degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Tamiko A. Amaker, J. at initial plea; Steven M. Statsinger, J. at re-plea and sentencing), rendered October 17, 2013, affirmed.

The record amply establishes that defendant's plea was knowing, intelligent, and voluntary. Defendant entered into a plea agreement that contemplated that he would initially plead guilty to menacing in the second degree (see Penal Law § 120.14), but would ultimately have that conviction reduced to harassment in the second degree (see Penal Law § 240.26[1]), if he, inter alia, completed a domestic violence program and was not rearrested during the next year. At the plea proceeding, the court advised defendant of the rights he was waiving by pleading guilty (see Boykin v Alabama, 395 US 238 [1969]), including the right to a trial, the right to remain silent and the right to confront his accusers (see People v Conceicao, 26 NY3d 375 [2015]).

We find unavailing defendant's present claim that the court failed to advise him of all his Boykin rights when he repleaded to second degree harassment. The initial plea allocution sufficiently established defendant's understanding of his Boykin rights for purposes of the later plea, inasmuch as the second plea was essentially an extension of the first plea, but with the conviction reduced to a violation for defendant's benefit (see People v Muir, 134 AD3d 641 [2015]; People v Hildinghohlson, 48 Misc 3d 30 [2015], lv denied 25 NY3d 1202 [2015]). "Having already waived his rights, a rigorous and detailed colloquy at defendant's replea to a lesser charge, carrying with it a lesser sentence, would have been an unnecessary formalism" (People v Muir, 134 AD3d at 641 [internal quotation marks omitted]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: April 20, 2016