People v Vargas (Jesenia)

[*1] People v Vargas (Jesenia) 2017 NY Slip Op 50803(U) Decided on June 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Ling-Cohan, JJ.
571175/15

The People of the State of New York, Respondent,

against

Jesenia Vargas, 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 December 6, 2015, convicting her, upon a plea of guilty, of driving while impaired, and imposing sentence.

Per Curiam.

Judgment of conviction (Edward J. McLaughlin, J.), rendered December 6, 2015, reversed, on the law, and matter remanded for further proceedings on the accusatory instrument.

As the People concede, defendant's conviction must be vacated since the plea record lacks the requisite "affirmative showing" that defendant understood and waived her Boykin rights (see Boykin v Alabama, 395 US 238, 242 [1969]; People v Tyrell, 22 NY3d 359, 365 [2013]), when she pleaded guilty at arraignment. However, we decline defendant's request to dismiss the accusatory instrument in view of the serious nature of the underlying drunk driving charges (see People v Wells, 21 NY3d 716, 720 n 2 [2013]), which stemmed from allegations that defendant operated a motor vehicle with a blood alcohol content of .093%. Thus, "for penological purposes, it is relevant whether defendant committed the crime" (People v Allen, 39 NY2d 916, 918 [1976]; see People v Teron, 139 AD3d 450 [2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 16, 2017