People v Viera (Francis)

[*1] People v Viera (Francis) 2017 NY Slip Op 50754(U) Decided on June 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 9, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Ling-Cohan, JJ.
570089/16

The People of the State of New York, Respondent,

against

Francis Viera, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Edward J. McLaughlin, J.), rendered January 10, 2016, convicting him, upon a plea of guilty, of criminal possession of a controlled substance in the seventh degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Edward J. McLaughlin, J.), rendered January 10, 2016, 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 concurI concurI concur
Decision Date: June 09, 2017