

People v Rosa (2016 NY Slip Op 00029)





People v Rosa


2016 NY Slip Op 00029


Decided on January 7, 2016


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 January 7, 2016

Mazzarelli, J.P., Acosta, Moskowitz, Richter, JJ.


16442

[*1] The People of the State of New York, 	37560C/11 Respondent,
vChristopher Rosa, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Anita Aboagye-Agyeman of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Paul B. Hershan of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Edgar G. Walker, J.), rendered May 16, 2012, convicting defendant, upon his plea of guilty, of aggravated unlicensed operation of a motor vehicle in the third degree, and sentencing him to a fine of $300, unanimously affirmed.
Generally, a defendant must move to withdraw the plea or to vacate the judgment of conviction to preserve a claim that a guilty plea is invalid (see People v Conceicao, — NY3d &mdash, 2015 NY Slip Op 08615, *3 [2015]). However, a narrow exception exists "where the particular circumstances of a case reveal that a defendant had no actual or practical ability to object to an alleged error in the taking of a plea that was clear from the face of the record" (id., citing People v Louree, 8 NY3d 541, 546 [2007]). Here, defendant's claims are reviewable on direct appeal. Defendant "faced a practical inability to move to withdraw" the plea, because he was sentenced on the same date as the plea (Conceicao at *3).
As to the validity of the plea, a failure to recite the Boykin rights does not automatically invalidate an otherwise voluntary and intelligent plea (Conceicao at *4). The record here shows that defendant knowingly, intelligently, and voluntarily waived his constitutional rights (see People v Harris, 61 NY2d 9, 17-19 [1983]). The plea occurred 10 months after defendant had been arrested and charged, and he had counsel on the case. On the date of the plea, at the beginning of the plea proceeding, without the need for additional discussion with defendant or the prosecutor, defendant's attorney stated that defendant had decided to plead guilty. This further supports the argument that defendant had made the decision to plead guilty after consulting with counsel before the start of the plea proceeding (see Conceicao at *4). Additionally, defendant, through his attorney, waived a more detailed allocution. While
the plea allocution could have been more robust, the record here establishes a knowing, intelligent, and voluntary waiver (id.).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 7, 2016
CLERK


