People v Gonzalez-Florian (Franklin)

[*1] People v Gonzalez-Florian (Franklin) 2017 NY Slip Op 51564(U) Decided on November 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570556/16

The People of the State of New York, Respondent,

against

Franklin Gonzalez-Florian, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Louis L. Nock, J.), rendered May 9, 2016, convicting him, upon a plea of guilty, of driving while impaired, and imposing sentence.

Per Curiam.

Judgment of conviction (Louis L. Nock, J.), rendered May 9, 2016, affirmed.

The record establishes that defendant's plea was knowing, intelligent and voluntary. In full satisfaction of an accusatory instrument charging, inter alia, two misdemeanor driving while intoxicated offenses, defendant pleaded guilty to a single count of driving while impaired, a traffic infraction, in exchange for a sentence of conditional discharge, premised on his payment of a $300 fine, completion of the Drinking Driver Program and six days' community service. Defense counsel waived prosecution by information and formal allocution, and in response to the court's questioning, defendant personally confirmed that he was pleading guilty of his own free will and that he understood that he was giving up his right to trial, to remain silent and to "present any possible defense." Thus, the record as a whole establishes defendant's understanding and waiver of his constitutional rights (see Boykin v Alabama, 395 US 238 [1969]), notwithstanding the absence of a full enumeration of all the rights waived during the course of the allocution (see People v Sougou, 26 NY3d 1053, 1054 [2015]; People v Simmons, 138 AD3d 520 [2016], lv denied 27 NY3d 1139 [2016]). Contrary to defendant's contention, the plea court specifically informed him of the terms of the conditional discharge (see generally People v Cardenas, 51 Misc 3d 141[A], 2016 NY Slip Op 50627[U] [App Term, 1st Dept 2016], lv denied 27 NY3d 1149 [2016]).

In any event, the only relief defendant requests is dismissal of the accusatory instrument, and he expressly requests that this court affirm his conviction if it does not grant dismissal. Since dismissal is not warranted, we affirm on this basis as well.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 20, 2017