People v Nesbitt (Calvin)

[*1] People v Nesbitt (Calvin) 2014 NY Slip Op 50259(U) Decided on February 27, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 27, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
11-448.

The People of the State of New York, Respondent, - -

against

Calvin Nesbitt, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Herbert J. Adlerberg, J.H.O.), rendered August 3, 2011, convicting him, upon a plea of guilty, of theft of services, and imposing sentence.

Per Curiam.

Judgment of conviction (Herbert J. Adlerberg, J.H.O.), rendered August 3, 2011, reversed, on the law, and the accusatory instrument dismissed.

As the People now concede, defendant's theft of services conviction must be vacated since the plea record lacks the requisite "affirming showing" that defendant understood and waived his Boykin rights (see Boykin v Alabama, 395 US 238 [1969]; People v Tyrell, ___ NY3d ___, 2013 NY Slip Op 08288 [2013]). Inasmuch as defendant has served his sentence, we dismiss the accusatory instrument in lieu of ordering a new trial, a disposition consented to by the People.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 27, 2014