People v Barabondeka (Oscar)

[*1] People v Barabondeka 2014 NY Slip Op 50892(U) Decided on June 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 9, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Hunter, Jr., J.
570697/10

The People of the State of New York, Respondent,

against

Oscar Barabondeka, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Matthew A. Sciarrino, J.), rendered July 20, 2010, convicting him, upon a plea of guilty, of aggravated unlicensed operation of a motor vehicle in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Matthew A. Sciarrino, J.), rendered July 20, 2010, affirmed.

Under the particular circumstances of this case, we find the record sufficient to establish defendant's understanding and waiver of his Boykin rights (see Boykin v Alabama, 395

US 238 [1969]; People v Tyrell, 22 NY3d 359, 366 [2013]),
and of his entry of an otherwise knowing and voluntary
guilty plea. Defendant pleaded guilty to third-degree aggravated unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 511[1][a]) — an unclassified misdemeanor punishable by a maximum fine of $500, a jail term of up to 30 days, or both — with the understanding that he would be sentenced to a $200 fine. The plea minutes reflect that defense counsel, in defendant's presence, informed the court that he had discussed "this plea" with defendant and that defendant wished to plead guilty, and that defendant, in response to the court's questioning, acknowledged the commission of the offense and confirmed his understanding that he was giving up his right to a trial, at which the People would have the burden to prove his guilt beyond a reasonable doubt. Manifestly, this case does not involve the type of "silent record" which, as Tyrell cautions, is insufficient to "overcome the presumption against waiver by a defendant of constitutionally guaranteed protections" (People v Tyrell, 22 NY3d at 365, quoting People v Harris, 61 NY2d 9, 17 [1983]). To the contrary, the plea record, taken as a whole and read in context, amply shows that defendant "intelligently and understandingly rejected his constitutional rights" (id.)

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur

Decision Date: June 09, 2014