People v Hernandez (Steven)

[*1] People v Hernandez (Steven) 2009 NY Slip Op 51777(U) [24 Misc 3d 143(A)] Decided on August 17, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 17, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570141/06.

The People of the State of New York, Respondent,

against

Steven Hernandez, 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 January 6, 2006, upon a plea of guilty, convicting him of assault in the third degree, and imposing sentence.

PER CURIAM.

Judgment of conviction (Anthony J. Ferrara, J.), rendered January 6, 2006, affirmed.

As the People concede, defendant's guilty plea was procedurally infirm, there being no basis in the record for a finding that defendant knowingly and intelligently
waived the right to be prosecuted upon an information (see CPL 170.65 [1], [3]; People v Weinberg, 34 NY2d 429, 431 [1974]).

Significantly, however, defendant expressly states on appeal that he does not wish his plea to be vacated unless we were to dismiss the accusatory instrument outright based upon his completion of the sentence. We find such an "unusual result" (People v Allen, 39 NY2d 916, 918 [1976]) to be unwarranted in view of the violent nature of the altercation underlying the remaining misdemeanor assault charge (cf. People v Burwell, 53 NY2d 849, 851 [1981]), and thus affirm.
THIS CONSTITUTES THE DECISION AND ORDER OF THE
COURT.
I concur [*2]
Decision Date: August 17, 2009