People v Smith (Keith)

[*1] People v Smith (Keith) 2016 NY Slip Op 51493(U) Decided on October 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Ling-Cohan, JJ.
570415/11

The People of the State of New York, Respondent,

against

Keith Smith, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Anthony J. Ferrara, J.), rendered April 29, 2011, convicting him, upon a plea of guilty, of unlawful possession, transportation and sale of untaxed cigarettes (see Tax Law § 1814[b]), and imposing sentence.

Per Curiam.

Judgment of conviction (Anthony J. Ferrara, J.), rendered April 29, 2011, reversed, on the law, accusatory instrument dismissed, and surcharge, if paid, remitted.

As the People concede, defendant's conviction must be vacated since the plea record lacks the requisite "affirmative showing" that defendant understood and waived his Boykin rights (see Boykin v Alabama, 395 US 238, 242 [1969]; People v Tyrell, 22 NY3d 359, 365 [2013]). The People also agree that dismissal of the accusatory instrument is the appropriate corrective action in this particular case (cf. People v Conceicao, 26 NY3d 375, n 1 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 21, 2016