Opinion
No. 570608/2011.
2014-07-29
The PEOPLE of the State of New York, Respondent, v. Edward BRADFORD, Defendant–Appellant.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Robert M. Mandelbaum, J.), rendered June 15, 2011, convicting him, upon a plea of guilty, of auto stripping in the third degree, and imposing sentence.
Judgment of conviction (Robert M. Mandelbaum, J.), rendered June 15, 2011, affirmed.
Under the particular circumstances of this case, we find the record sufficient to establish defendant's understanding and waiver of his constitutional rights ( see People v. Tyrell, 22 NY3d 359, 366 [2013] ), even though there was no discussion on the record of defendant's rights under Boykin v. Alabama, 395 U.S. 238 (1969). During plea proceedings held a full three weeks after his arrest, defendant accepted a favorable plea after consulting with active and able counsel. The plea minutes reflect that defendant personally confirmed that he was pleading guilty of his own free will and because he was in fact guilty of the top count of the underlying four-count information. Thus, a sufficient showing was made that defendant “clearly understood the nature of the charges to which he was pleading and willingly entered his plea to obtain the benefit of the bargain he had struck” ( People v. Goldstein, 12 NY3d 295, 301 [2009] ), and had “ample opportunity to review his options in consultation with counsel” ( People v. Perez, 116 AD3d 511, –––– [2014]; see People v. Jackson, 114 AD3d 807 [2014] ).
Similarly unavailing is defendant's challenge to the facial sufficiency of the underlying accusatory instrument charging third-degree auto stripping ( see Penal Law § 165.09[1] ).
Contrary to defendant's contention, the information was not required to allege the inapplicability of the abandoned vehicle exemption contained in Penal Law § 165.09(1), which, as indicated in the footnote, “require[s] reference to another statute to determine its applicability” ( People v. Santana, 7 NY3d 234, 237 [2006] ). We conclude that the abandoned vehicle clause operates as a proviso to be raised by an accused, rather than an exception that must be pleaded by the People. “As a matter of common sense and reasonable pleading' ( People v. Devinny, 227 N.Y. 397, 401 [1919] ), we do not believe that the Legislature intended to require the People to negate each of the alternatives specified in [ Vehicle and Traffic Law § 1224(1) ] in every [auto stripping] accusatory instrument premised on Penal Law § [165.09]” ( People v. Santana, at 237).
The cited Penal Law section make it unlawful to “remove[ ] or intentionally destroy[ ] or deface[ ] any part of a vehicle, other than an abandoned vehicle, as defined in subdivision one of section one thousand two hundred twenty-four of the vehicle and traffic law, without the permission of the owner.” In turn, the referenced Vehicle and Traffic Law section sets forth four distinct situations in which a motor vehicle, if left unattended, “shall be deemed to be ... abandoned” after specified time periods, varying in duration from one situation to another.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur