Opinion
5270 Ind. 3189/08
12-28-2017
The PEOPLE of the State of New York, Respondent, v. Irving AYALA, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Steven R. Berko of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Steven R. Berko of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), for respondent.
Acosta, P.J., Richter, Mazzarelli, Andrias, Gesmer, JJ.
Judgment, Supreme Court, New York County (Robert M. Stoltz, J.), rendered October 7, 2009, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender, to a term of one year, unanimously affirmed.
Defendant's claim that the court's discussion of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ) was deficient is unpreserved, and does not fall within the narrow exception to the preservation requirement (see People v. Conceicao, 26 N.Y.3d 375, 381–82, 44 N.E.3d 199 [2015] ). We decline to review defendant's claim in the interest of justice.
As an alternative holding, we find that the record as a whole establishes the voluntariness of the plea. A court's omission of the word "jury" in discussing a defendant's right to a trial does not, by itself, vitiate the validity of a guilty plea (see e.g. People v. Mendez, 148 A.D.3d 555, 50 N.Y.S.3d 55 [1st Dept. 2017], lv denied 29 N.Y.3d 1083, 86 N.E.3d 260 [2017] ).
In any event, dismissal of the indictment, which is the only remedy sought on appeal, would not be the proper corrective action in this case.