People v Vargas

People v Vargas 2017 NY Slip Op 08179 Decided on November 21, 2017 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 November 21, 2017
Acosta, P.J., Tom, Webber, Gesmer, Singh, JJ.
69/13 4994A 2293/13 4994

[*1] The People of the State of New York, Respondent,

v

Vladimir Vargas also known as Bladimir Vargas, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Joanne Legano Ross of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Dmitriy Povazhuk of counsel), for respondent.

Judgments, Supreme Court, Bronx County (John S. Moore, J. at fourth-degree sale plea; Albert Lorenzo, J. at third-degree sale plea and sentencing), rendered May 12, 2014, convicting defendant of criminal sale of a controlled substance in the third and fourth degrees, and sentencing him to concurrent terms of 1½ years, unanimously affirmed.

Defendant's challenge to the court's recitation, at the time of his plea of guilty to fourth-degree sale, of his rights under Boykin v Alabama (395 US 238 [1969]) does not fall within the narrow exception to the preservation requirement (see People v Conceicao, 26 NY3d 375, 382 [2015]). Defendant was sentenced nearly a year later, after pleading guilty to the subsequent third-degree sale charge (about which he raises no Boykin issue), and the record fails to support his claim that he lacked the practical ability to move to withdraw the first plea. We decline to review defendant's claim in the interest of justice. As an alternative holding, we find that the record establishes that the plea was knowing, intelligent and voluntary (see People v Tyrell, 22 NY3d 359, 365 [2013]; People v Harris, 61 NY2d 9, 16-19 [1983]), notwithstanding the claimed deficiencies in the Boykin warnings (see e.g. People v Williams, 137 AD3d 706 [1st Dept 2016], lv denied 27 NY3d 1141 [2016]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 21, 2017

CLERK