People v Pellegrino

People v Pellegrino 2015 NY Slip Op 08618 Decided on November 24, 2015 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 24, 2015
No. 209 SSM 26

[*1]The People & c., Respondent,

v

Stephen Pellegrino, Appellant.

Submitted by Joanne Legano Ross, for appellant.

Submitted by Yuval Simchi-Levi, for respondent.

MEMORANDUM:

The order of the Appellate Term should be affirmed.

A guilty plea is not invalid solely because the trial court failed to recite a [*2]defendant's constitutional rights under Boykin v Alabama (395 US 238 [1969]; see People v Conceicao, ___ NY3d ___, 2015 NY Slip Op ___ [decided herewith]). The record as a whole, however, must affirmatively demonstrate that defendant knowingly, intelligently and voluntarily waived those rights (see People v Harris, 61 NY2d 9, 17 [1983]).

The Appellate Term correctly concluded that the record in this case affirmatively shows a knowing, intelligent and voluntary waiver. Although he was initially charged with a felony, defendant pleaded guilty to promoting prostitution in the fourth degree (Penal Law § 230.20), a class A misdemeanor, in exchange for a $250 fine. He discussed the plea with his attorney for two days and personally confirmed that he was pleading guilty of his own free will because he was, in fact, guilty of the charge. The court ensured that defendant was aware of any potential immigration consequences and also that the conviction would add to his criminal record. We are satisfied that these facts establish a knowing, intelligent and voluntary waiver.

LIPPMAN, Chief Judge(dissenting):

I dissent for the reasons stated in my dissenting opinion in People v Conceicao ( NY3d [decided herewith]).

* * * * * * * * * * * * * * * * *

On review of submissions pursuant to section 500.11 of the Rules, order affirmed, in a memorandum. Judges Pigott, Abdus-Salaam, Stein and Fahey concur. Chief Judge Lippman dissents in an opinion in which Judge Rivera concurs.

Decided November 24, 2015