Opinion
2017–06074 2017–06075 S.C.I. Nos. 15-01180, 16-01045
04-21-2021
The PEOPLE, etc., respondent, v. Emmanuel LAMERY, appellant.
Arza Feldman, Manhasset, NY, for appellant. Miriam E. Rocah, District Attorney, White Plains, N.Y. (William C. Milaccio of counsel), for respondent.
Arza Feldman, Manhasset, NY, for appellant.
Miriam E. Rocah, District Attorney, White Plains, N.Y. (William C. Milaccio of counsel), for respondent.
REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeals by the defendant from two judgments of the County Court, Westchester County (Larry J. Schwartz, J.), both rendered May 9, 2017, convicting him of criminal possession of a controlled substance in the fifth degree under Superior Court Information No. 15–01180, and criminal possession of a controlled substance in the fifth degree under Superior Court Information No. 16–01045, upon his pleas of guilty, and imposing sentences.
ORDERED that the judgments are affirmed.
The defendant was charged by separate superior court informations with criminal possession of a controlled substance (crack cocaine), based upon two separate incidents occurring on August 13, 2015, and August 1, 2016, respectively. The defendant pleaded guilty to criminal possession of a controlled substance in the fifth degree with respect to each superior court information, in exchange for a promised sentence for both crimes of two concurrent terms of imprisonment of one year plus two concurrent terms of one year postrelease supervision. The plea agreement was read into the record at the commencement of the plea proceeding. Then the defendant waived his right to be prosecuted by indictment, and stated that he agreed to the plea agreement.
The defendant was advised that if he was not a citizen of the United States, his pleas of guilty "may" result in his deportation (see People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 ). The defendant then waived his Boykin rights (see Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 ), including his right to remain silent, his right to a jury or nonjury trial, and his right to cross-examine witnesses and call his own witnesses. In conclusion, the defendant admitted his guilt to the crimes to which he pleaded guilty, and the pleas were accepted.
The defendant, citing People v. Leach, 26 N.Y.3d 1154, 28 N.Y.S.3d 355, 48 N.E.3d 497, contends that his pleas of guilty were invalid because he waived his Boykin rights and was only given the warning required under People v. Peque, 22 N.Y.3d at 176, 980 N.Y.S.2d 280, 3 N.E.3d 617, after he admitted his guilt. The defendant failed to preserve this issue for appellate review, as he was required to do (see People v. Williams, 27 N.Y.3d 212, 32 N.Y.S.3d 17, 51 N.E.3d 528 ; People v. Leach, 26 N.Y.3d at 1154, 28 N.Y.S.3d 355, 48 N.E.3d 497 ). In any event, the Peque warning was issued, and the defendant's waiver of his Boykin rights occurred, before the pleas were accepted, and before the defendant admitted to the facts of the crimes. Further, where, as here, the record indicates that the defendant discussed the pleas with his attorney, prior to agreeing to their terms, the absence of formal recitation of Boykin rights on the record is not a fatal defect (see People v. Conceicao, 26 N.Y.3d 375, 23 N.Y.S.3d 124, 44 N.E.3d 199 ). In any case, there was a recitation of Boykin rights and the defendant's waiver of those rights on the record.
Accordingly, the judgments of conviction are affirmed.
RIVERA, J.P., HINDS–RADIX, CONNOLLY and IANNACCI, JJ., concur.