

People v Ayala (2017 NY Slip Op 09230)





People v Ayala


2017 NY Slip Op 09230


Decided on December 28, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on December 28, 2017

Acosta, P.J., Richter, Mazzarelli, Andrias, Gesmer, JJ.


5270 3189/08

[*1]The People of the State of New York, Respondent,
vIrving Ayala, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Steven R. Berko of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), for respondent.

Judgment, Supreme Court, New York County (Robert M. Stoltz, J.), rendered October 7, 2009, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender, to a term of one year, unanimously affirmed.
Defendant's claim that the court's discussion of his rights under Boykin v Alabama (395 US 238 [1969]) was deficient is unpreserved, and does not fall within the narrow exception to the preservation requirement (see People v Conceicao, 26 NY3d 375, 381-82 [2015]). We decline to review defendant's claim in the interest of justice.
As an alternative holding, we find that the record as a whole establishes the voluntariness of the plea. A court's omission of the word "jury" in discussing a defendant's right to a trial does not, by itself, vitiate the validity of a guilty plea (see e.g. People v Mendez, 148 AD3d 555 [1st Dept 2017], lv denied 29 NY3d 1083 [2017]).
In any event, dismissal of the indictment, which is the only remedy sought on appeal, would not be the proper corrective action in this case.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 28, 2017
CLERK


