People v Diaz

People v Diaz 2013 NY Slip Op 08025 Decided on December 3, 2013 Appellate Division, First Department 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 December 3, 2013
Andrias, J.P., Acosta, Moskowitz, Richter, Manzanet-Daniels, JJ.
11226

[*1]The People of the State of New York, Dkt. 69762C/10 Respondent,

v

Jose Diaz, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Laura Boyd
of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Bari L. Kamlet of
counsel), for respondent.

Judgment, Supreme Court, Bronx County (William McGuire, J.), rendered March 11, 2011, convicting defendant, upon his plea of guilty, of operating a motor vehicle while under the influence of alcohol, and sentencing him to a conditional discharge and a $500 fine, unanimously affirmed.

Since defendant never moved to withdraw his guilty plea or to vacate the judgment of conviction, his challenge to the voluntariness of his plea is unpreserved, and we decline to review it in the interest of justice (see People v Lopez, 71 NY2d 662, 666 [1988]). The narrow exception to the preservation rule is not applicable because nothing in the plea allocution casts doubt on defendant's guilt (see id.). As an alternative holding, we find, based on all the relevant circumstances, that defendant entered into his plea knowingly, voluntarily, and intelligently (see People v Nyarko, 93 AD3d 555 [1st Dept 2012], lv denied 19 NY3d 965 [2012]).

In any event, the only relief defendant requests is a dismissal of the information, and he expressly requests this Court to affirm his conviction if it does not grant a dismissal. Since dismissal is not warranted, we affirm on this basis as well (see People v Schweitzer, 83 AD3d 503 [1st Dept 2011], lv denied 17 NY3d 800 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 3, 2013

CLERK