Opinion
570684/17
05-18-2022
The People of the State of New York, Respondent, v. Jose Jackman, Defendant-Appellant.
Unpublished Opinion
PRESENT: Brigantti, J.P., Hagler, Michael, JJ.
PER CURIAM
Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Bianka Perez, J., at plea, Margaret W. Martin, J. at sentencing), rendered September 6, 2017, convicting him, upon his plea of guilty, of driving while intoxicated per se, and imposing sentence.
Judgment of conviction (Bianka Perez, J., at plea, Margaret W. Martin, J., at sentencing), rendered September 6, 2017, affirmed.
Defendant's various challenges to his guilty plea are unpreserved, since he failed to make an appropriate postallocution motion or otherwise raise the issues in the plea court, despite ample opportunity to do so within the six months between his guilty plea and sentencing (see People v Laroche, 142 A.D.3d 872 [2016], lv denied 28 N.Y.3d 1073 [2016]; People v Buie, 128 A.D.3d 1281 [2015]). The narrow exception to the preservation rule is not applicable here because nothing in the record casts significant doubt on the knowing or voluntary nature of defendant's guilty plea (see People v Diaz, 112 A.D.3d 423, 424 [2013], lv denied 23 N.Y.3d 1036 [2014]) and we decline to review the challenges in the interest of justice. As an alternative holding, we find that the record establishes that the plea was knowing, intelligent and voluntary (see People v Tyrell, 22 N.Y.3d 359, 365 [2013]; People v Harris, 61 N.Y.2d 9, 16-19 [1983]), notwithstanding the absence of a formal recitation of the Boykin rights (see People v Conceicao, 26 N.Y.3d 375, 383 [2015]; People v Sougou, 26 N.Y.3d 1052, 1054-1055 [2015]; People v Rosa, 135 A.D.3d 434, 435 [2016], lv denied 27 N.Y.3d 968 [2016]).
Furthermore, while the court, upon realizing an error in the promised sentence, imposed a greater sentence than previously negotiated, it provided defendant a suitable remedy by offering him the opportunity to withdraw his plea, which he declined (see People v McConnell, 49 N.Y.2d 340, 347 [1980]["A defendant who has not... changed his position will generally be entitled to no more than the vacation of his plea if the court concludes that it cannot adhere to the promise given, for the simple reason that vacating the plea restores him to the same position he was in before the plea was taken"]; People v Schultz, 73 N.Y.2d 757, 758 [1988]; People v Parilla, 33 A.D.3d 363 [2006], affd 8 N.Y.3d 654 [2007]).
In any event, the only relief defendant requests is dismissal of the accusatory instrument, and he expressly requests that this Court affirm his conviction if it does not grant a dismissal. Since dismissal is not warranted, we affirm on that basis as well (see People v Conceicao, 26 N.Y.3d at 385 n; People v Vargas, 162 A.D.3d 531 [2018], lv denied 32 N.Y.3d 942 [2018]).
All concur