People v Pena (Anthony)

[*1] People v Pena (Anthony) 2017 NY Slip Op 50614(U) Decided on May 8, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 8, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Gonzalez, JJ.
571124/15

The People of the State of New York, Respondent,

against

Anthony Pena, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Michael D. Stallman, J.), rendered October 25, 2015, convicting him, upon a plea of guilty, of disorderly conduct, and imposing sentence.

Per Curiam.

Judgment of conviction (Michael D. Stallman, J.), rendered October 25, 2015, reversed, on the law, accusatory instrument dismissed, and surcharge, if paid, remitted.

As the People concede, defendant's conviction must be vacated since the plea record lacks the requisite "affirmative showing" that defendant understood and waived his Boykin rights (see Boykin v Alabama, 395 US 238, 242 [1969]; People v Tyrell, 22 NY3d 359, 365 [2013]). The People also agree that dismissal of the accusatory instrument is the appropriate corrective action in this particular case (cf. People v Conceicao, 26 NY3d 375, n 1 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 08, 2017