Opinion
14455 Ind. No. 984/14 Case No. 2016–922
10-21-2021
The PEOPLE of the State of New York, Respondent, v. Victor HERNANDEZ, Defendant–Appellant.
Caprice R. Jenerson, Office of The Appellate Defender, New York (Margaret E. Knight of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.
Caprice R. Jenerson, Office of The Appellate Defender, New York (Margaret E. Knight of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.
Renwick, J.P., Kapnick, Scarpulla, Rodriguez, Higgitt, JJ.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered May 8, 2015, convicting defendant, upon his plea of guilty, of aggravated harassment of an employee by an inmate, and sentencing him to a term of one year, unanimously affirmed.
By pleading guilty, defendant waived his statutory right to seek dismissal of the indictment (see People v. Hansen, 95 N.Y.2d 227, 231, n. 3, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Friscia, 51 N.Y.2d 845, 847, 433 N.Y.S.2d 754, 413 N.E.2d 1168 [1980] ), including the right to seek dismissal in furtherance of justice pursuant to CPL 210.40 (see People v. Kontos, 71 A.D.3d 507, 898 N.Y.S.2d 12 [1st Dept. 2010], lv denied 14 N.Y.3d 887, 889, 903 N.Y.S.2d 775, 777, 929 N.E.2d 1010, 1012 [2010]). In any event, we find we find no "compelling factor" ( CPL 210.40[1] ) that would warrant that "extraordinary remedy" ( People v. Moye, 302 A.D.2d 610, 611, 755 N.Y.S.2d 307 [2d Dept. 2003] ), "which we have cautioned should be exercised sparingly" ( People v. Keith R., 95 A.D.3d 65, 67, 941 N.Y.S.2d 76 [1st Dept. 2012], lv denied 19 N.Y.3d 963, 950 N.Y.S.2d 115, 973 N.E.2d 213 [2012] [internal quotation marks omitted]). Defendant's actions were serious, and involved a vulnerable hospital worker to whom special protections were granted by the statute under which defendant was convicted ( Penal Law § 240.32 ). Defendant also received a favorable disposition that ran concurrently with his sentences on two robbery cases and entailed no additional incarceration.