| People v Rosa |
| 2016 NY Slip Op 00029 [135 AD3d 434] |
| January 7, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Rosa, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (AnitaAboagye-Agyeman of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Paul B. Hershan of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Edgar G. Walker, J.), rendered May 16,2012, convicting defendant, upon his plea of guilty, of aggravated unlicensed operationof a motor vehicle in the third degree, and sentencing him to a fine of $300, unanimouslyaffirmed.
Generally, a defendant must move to withdraw the plea or to vacate the judgment ofconviction to preserve a claim that a guilty plea is invalid (see People vConceicao, 26 NY3d 375, 381, 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 orpractical ability to object to an alleged error in the taking of a plea that was clear from theface of the record" (Conceicao, 26 NY3d at 381, 2015 NY Slip Op 08615, *3, citing People v Louree, 8 NY3d 541, 546 [2007]). Here,defendant's claims are reviewable on direct appeal. Defendant "faced a practical inabilityto move to withdraw" the plea, because he was sentenced on the same date as the plea(Conceicao 26 NY3d at 382).
As to the validity of the plea, a failure to recite the Boykin rights does notautomatically invalidate an otherwise voluntary and intelligent plea (Conceicao26 NY3d at 383). The record here shows that defendant knowingly, intelligently, and voluntarilywaived 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 hadcounsel 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'sattorney stated that defendant had decided to plead guilty. This further supports theargument that defendant had made the decision to plead guilty after consulting withcounsel before the start of the plea proceeding (see Conceicao 26 NY3d at 384). Additionally, defendant, through his attorney, waived a more detailed allocution.While the plea allocution could have been more robust, the record here establishes aknowing, intelligent, and voluntary waiver (see Conceicao 26 NY3d at 384). Concur—Mazzarelli, J.P., Acosta, Moskowitz and Richter, JJ.