People v Reyes (Edgardo)

[*1] People v Reyes (Edgardo) 2018 NY Slip Op 50071(U) Decided on January 22, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 22, 2018
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Ling-Cohan, Gonzalez, JJ.
15-295

The People of the State of New York, Respondent,

against

Edgardo Reyes, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Ann E. Scherzer, J., at plea; Laurie Peterson, J., at sentencing), rendered November 14, 2014, convicting him, upon his plea of guilty, of possession of burglar's tools, and imposing sentence.

Per Curiam.

Judgment of conviction, (Ann E. Scherzer, J., at plea; Laurie Peterson, J., at sentencing), rendered November 14, 2014, affirmed.

Defendant's contention that his plea was not knowing, voluntary and intelligent is unpreserved for appellate review, since defendant did not make a postallocution motion to withdraw his plea or to set aside the judgment of conviction pursuant to CPL 440.10 (see People v Conceicao, 26 NY3d 375, 381-382 [2015]; People v Jackson, 123 AD3d 634 [2014], lv denied 25 NY3d 1202 [2015]) and we decline to review it in the interest of justice. Unlike the situation in People v Tyrell (22 NY3d 359 [2013]), defendant had the opportunity to move to withdraw his plea or otherwise raise the issue and the alleged deficiency did not rise to the level of a mode of proceedings error (see People v Powell, 134 AD3d 647 [2015], lv denied 27 NY3d 1073 [2016]). As an alternative holding, we find that the plea was knowing, intelligent and voluntary, notwithstanding the absence of a full enumeration of all the rights waived during the course of the allocution (see People v Sougou, 26 NY3d 1052, 1054 [2015]; People v Simmons, 138 AD3d 520 [2016], lv denied 27 NY3d 1139 [2016]).

In any event, defendant expressly requests that he does not want his plea to be vacated unless we were to dismiss the accusatory instrument based on his completion of his sentence. Since dismissal is not warranted (see People v Conceicao, 26 NY3d at 385 n 1 [2015]; People v Teron, 139 AD3d 450 [2016]), we affirm on this basis as well (see People v Diaz, 112 AD3d 423 [2013], lv denied 23 NY3d 1036 [2014]; People v Schweitzer, 83 AD3d 503 [2011], lv denied 17 NY3d 800 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: January 22, 2018