People v Cade

People v Cade 2018 NY Slip Op 07067 Decided on October 23, 2018 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 October 23, 2018
Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.
7437 1058/13

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

v

James Cade, Defendant-Appellant.

Justin M. Luongo, The Legal Aid Society, New York (Steven R. Berko of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), for respondent.

Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered November 13, 2013, convicting defendant, upon his plea of guilty, of operating a motor vehicle while under the influence of alcohol, and sentencing him to a term of 30 days with 5 years' probation and a $1000 fine, unanimously affirmed.

Defendant's claim that the court's explanation of his rights under Boykin v Alabama (395 US 238 [1969]) was deficient is unpreserved, and does not fall within the narrow exception to the preservation requirement (see People v Conceicao, 26 NY3d 375, 381-382 [2015]). We decline to review this claim in the interest of justice. As an alternative holding, we find that the court correctly stated the Boykin rights, and was not obligated to

label them as "constitutional," or to inform defendant that a jury would consist of 12 people.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 23, 2018

CLERK