Opinion
2018-1027 K CR
12-18-2020
The PEOPLE of the State of New York, Respondent, v. Ignacio LARA, Appellant.
Appellate Advocates (Alexis A. Ascher of counsel), for appellant. Kings County District Attorney (Leonard Joblove and Sarah G. Pitts of counsel), for respondent.
Appellate Advocates (Alexis A. Ascher of counsel), for appellant.
Kings County District Attorney (Leonard Joblove and Sarah G. Pitts of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in an accusatory instrument with obstructing governmental administration in the second degree ( Penal Law § 195.05 ), criminal possession of a weapon in the fourth degree ( Penal Law § 265.01 [1] ), criminal possession of a firearm ( Penal Law § 265.01-b [1] ), possession of pistol ammunition (Administrative Code of City of NY § 10-131 [i] [3] ), and several Vehicle and Traffic Law violations. Upon dismissal of the weapons charges, which included a class E felony, defendant pleaded guilty to obstructing governmental administration in the second degree in satisfaction of the remaining counts contained in the accusatory instrument. On appeal, defendant challenges the facial sufficiency of the charge to which he pleaded guilty and further requests that, if the court accepts his claim, rather than restoring the remaining counts of the accusatory instrument to their prepleading status and remitting the matter for all further proceedings thereon (see CPL 470.55 [2] ), this court should dismiss the accusatory instrument as a matter of discretion in the interest of justice. However, should this court not be inclined to dismiss the entire accusatory instrument in the interest of justice, defendant explicitly requests that the court affirm the judgment of conviction.
Under the circumstances of this case, where defendant was originally charged with criminal possession of a firearm, a felony, criminal possession of a weapon in the fourth degree and possession of pistol ammunition, upon a reversal of the judgment of conviction, we would not be inclined to abide by defendant's specific request, as we find that there would be a penological purpose served by restoring the remaining counts of the accusatory instrument to its prepleading status and remitting the matter for further proceedings thereon (see CPL 470.55 [2] ; see e.g. People v. Vasquez , 63 Misc 3d 137[A], 2019 NY Slip Op 50524[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v. Mizrahi , 62 Misc 3d 139[A], 2019 NY Slip Op 50053[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] ). In view of the foregoing, as per defendant's explicit request (see People v. Jeudy , 153 AD3d 1203 [2017] ; People v. Hough , 176 AD2d 964 [1991] ; People v. Vaughn , 119 AD2d 779 [1986] ; Vasquez , 63 Misc 3d 137[A], 2019 NY Slip Op 50524[U] ), we affirm the judgment of conviction without reviewing defendant's appellate challenge, as the ultimate outcome of this appeal would, in any event, be an affirmance.
Accordingly, the judgment of conviction is affirmed.
ALIOTTA, P.J., WESTON and ELLIOT, JJ., concur.