Opinion
8183 Ind. 1927/15
01-22-2019
The PEOPLE of the State of New York, Respondent, v. Deshawn DONELY, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Taylor L. Napolitano of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Rebecca Hausner of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Taylor L. Napolitano of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Rebecca Hausner of counsel), for respondent.
Sweeny, J.P., Richter, Tom, Kern, Singh, JJ.
Judgment, Supreme Court, New York County (Juan M. Merchan, J.), rendered June 21, 2016, convicting defendant, upon his plea of guilty, of two counts of attempted burglary in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 1 ½ to 3 years, unanimously affirmed.
Defendant claims that his plea was involuntary, but has not shown how the events of his uncompleted first trial impaired the voluntariness of the plea in any way (see People v. Pena, 7 A.D.3d 259, 260, 776 N.Y.S.2d 37 [1st Dept. 2004], lv denied 3 N.Y.3d 645, 782 N.Y.S.2d 416, 816 N.E.2d 206 [2004] ).
In any event, the only relief defendant requests is dismissal of the indictment rather than vacatur of the plea, and he expressly requests this Court to affirm the conviction if it does not grant a dismissal. Since we do not find that dismissal would be appropriate, we affirm on this basis as well (see e.g. People v. Teron, 139 A.D.3d 450, 29 N.Y.S.3d 175 [1st Dept. 2016] ). The fact that defendant has been released on parole is not a sufficient basis for dismissal, especially where defendant is a predicate felon (see e.g. People v. Peters, 157 A.D.3d 79, 85, 66 N.Y.S.3d 238 [1st Dept. 2017], 1v denied 30 N.Y.3d 1118, 77 N.Y.S.3d 343, 101 N.E.3d 984 [2018] ).