People v Costa (Steven)

[*1] People v Costa (Steven) 2010 NY Slip Op 51460(U) [28 Misc 3d 137(A)] Decided on August 13, 2010 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : LaCAVA, J.P., TANENBAUM and IANNACCI, JJ
2005-1707 D CR.

The People of the State of New York, Respondent,

against

Steven A. Costa, Appellant.

Appeal from two judgments of the City Court of Poughkeepsie, Dutchess County (Ronald J. McGaw, J., at plea and sentence), rendered October 26, 2005. The judgments convicted defendant, upon his pleas of guilty, of criminal possession of stolen property in the fifth degree and petit larceny.

ORDERED that the judgments of conviction are affirmed.

Defendant was convicted, upon his guilty plea, of criminal possession of stolen property in the fifth degree (Penal Law § 165.40). The record of the plea proceeding is not available. Defendant contends that, because the record is unavailable and a reconstruction hearing is no longer feasible, his conviction should be reversed. We reject his argument. Defendant has not "identif[ied] a ground for appeal that is based on something that occurred during the untranscribed proceeding," and is thus not entitled to a reconstruction hearing (People v Parris, 4 NY3d 41, 44 [2004]); nor is he entitled to a reversal of this conviction (see id.).

Defendant was also convicted, upon a guilty plea, of petit larceny (Penal Law § 155.25). The record of this plea proceeding is before the court. Defendant argues that his plea was not knowingly and voluntarily entered because the City Court did not adequately apprise him of the rights that he was forfeiting by pleading guilty or of the penal consequences of his plea. This issue is not preserved (see People v Lloyd, 25 Misc 3d 137[A], 2009 NY Slip Op 52319[U] [App Term, 9th & 10th Jud Dists 2009]), and, under the circumstances, we decline to reach it in the interest of justice.

Accordingly, both judgments of conviction are affirmed.

LaCava, J.P. and Iannacci, J., concur.

Tanenbaum, J., dissents in a separate memorandum.

Tanenbaum, J., dissents and votes to reverse the judgments, vacate defendant's pleas and remit the matter to the Poughkeepsie City Court for further proceedings on the accusatory [*2]instruments, in the following memorandum:

The majority decision reconstructs, indeed, fills gaps in the record, inadvisably. Under the circumstances, defendant is entitled to reinstatement of the pending charges.
Decision Date: August 13, 2010