Opinion
570821/11
06-13-2016
The People of the State of New York, Respondent, v. Yanis Simonovichyus, Defendant-Appellant.
PRESENT: Hunter, Jr., J.P., Schoenfeld, Shulman, JJ.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Matthew A. Sciarrino, J.), rendered September 26, 2011, convicting him, upon his plea of guilty, of driving while impaired, and imposing sentence.
Per Curiam.
Judgment of conviction (Matthew A. Sciarrino, J.), rendered September 26, 2011, affirmed.
Upon our review of the record as a whole and the circumstances of the plea in its totality (see People v Sougou, 26 NY3d 1052, 1055 [2015]), we are satisfied that defendant "intelligently and understandingly waived [his] constitutional rights" (People v Conceicao, 26 NY3d 375, 383 [2015]; see Boykin v Alabama, 395 US 238 [1969]; People v Tyrell, 22 NY3d 359, 366 [2013]), and entered an otherwise knowing and voluntary guilty plea. At the plea proceeding, defendant pleaded guilty to driving while impaired - which, as his counsel emphasized on the record, was "a traffic infraction, not a crime" and would "not give [him] a criminal record" - in exchange for a sentence of conditional discharge. This favorable plea occurred one year after defendant had been arrested and charged; he had counsel on the case, who filed motions and "actively litigated" the matter, efforts which resulted in the dismissal of the two misdemeanor counts originally charged (see People v Conceicao, 26 NY3d at 384).
Defendant was also aware of his right to a trial, because his case was on for trial the very same day that he pleaded guilty. That his "attorney announced at the start of the plea proceeding, without the need for any additional discussion with defendant or the prosecutor, that defendant had decided to plead guilty rather than proceed to the scheduled trial further confirms that defendant made the decision to plead guilty after consulting with counsel prior to the start of the proceeding" (People v Conceicao, 26 NY3d at 384). Moreover, defendant "through his attorney, waived a more detailed allocution that might have entailed discussion of the Boykin rights" ( id.).
A failure to recite the Boykin rights (see Boykin v Alabama, 395 US 238 [1969]) does not automatically invalidate an otherwise voluntary and intelligent plea (see People v Conceicao, 26 NY3d at 383; People v Sougou, 26 NY3d at 1054-1055 [2015]; People v Rosa, 135 AD3d 434, 435 [2016], lv denied 27 NY3d 968 [2016]), and here the record shows that defendant knowingly, voluntarily and intelligently waived his constitutional rights.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: June 13, 2016