| People v Teron |
| 2016 NY Slip Op 03598 [139 AD3d 450] |
| May 5, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jay Jay Teron, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Richard Joselson ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Jordan K. Hummel of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (George R. Villegas, J., at plea andoriginal sentencing), rendered January 17, 2012, as amended April 12, 2012 (John S.Moore, J., at resentencing), convicting defendant of unlicensed operation of a motorvehicle, and sentencing him to time served, unanimously affirmed.
Initially, we need not address the issue of whether defendant's challenge to his pleahas been preserved, as we consider this claim pursuant to our interest of justicejurisdiction (CPL 470.15 [3] [c]).
Defendant was not informed by the court of any of the rights he was waiving bypleading guilty (see Boykin v Alabama, 395 US 238 [1969]). While "the failureto recite the Boykin rights does not automatically invalidate an otherwisevoluntary and intelligent plea . . . the record as a whole [must] affirmativelyshow[ ] that the defendant intentionally relinquished those rights" in order for the plea tobe validly entered (People vConceicao, 26 NY3d 375, 379 [2015]). In this case, since the record is devoid ofany indicia that would meet this standard, we find that defendant's Boykin rightswere violated.
Nevertheless, in cases where "the record fails to establish a knowing and intelligentwaiver," dismissal may not be "the appropriate corrective action" (id. at 379 andn; see also People v Allen, 39 NY2d 916, 918 [1976]). The proper remedy shouldbe either an affirmance of the conviction or a vacatur of the plea and remand for furtherproceedings.
Defendant has completed his sentence of time served and a fine but has not set forthsufficient grounds to dismiss the accusatory instrument. Additionally, defendantaffirmatively states that he does not seek vacatur of his plea and a remand to the trialcourt.
Accordingly, the judgment of conviction is affirmed. Concur—Sweeny, J.P.,Saxe, Richter and Gische, JJ.
The decision and order of this Court entered herein on January, 21, 2016 (135 AD3d586 [2016]) is hereby recalled and vacated (see 2016 NY Slip Op 72449[U][2016] [decided simultaneously herewith]).