Opinion
No. 570670/15
09-22-2022
The People of the State of New York, Respondent, v. Eduardo Pereira, Defendant-Appellant.
Unpublished Opinion
PRESENT: Brigantti, J.P., Tisch, Michael, JJ.
In consolidated appeals, defendant appeals from (1) a judgment of the Criminal Court of the City of New York, New York County (Felicia A. Mennin, J., at plea; Lisa A. Sokoloff, J., at sentencing), rendered November 24, 2015, convicting him, upon his plea of guilty, of petit larceny and imposing sentence and (2) a judgment (same court, Lisa A. Sokoloff, J.), rendered November 24, 2015, convicting him, upon his plea of guilty, of petit larceny, and imposing sentence.
PER CURIAM.
Judgment of conviction (Felicia A. Mennin, J., at plea; Lisa A. Sokoloff, J., at sentencing), rendered November 24, 2015, on docket number 2015NY074218, affirmed. Judgment of conviction (Lisa A. Sokoloff, J.), rendered November 24, 2015 on docket number 2015NY075102 modified, as a matter of discretion in the interest of justice, to the extent of vacating the petit larceny conviction and substituting a conviction of criminal trespass in the second degree.
Even assuming that the sentencing court erred when it purportedly found that defendant violated the terms of a conditional discharge and/or imposed an enhanced sentence under docket number 2015NY074218, the remedy here would be to modify to the extent of vacating the sentence and remanding for resentencing. However, the only relief defendant seeks is dismissal of the accusatory instrument rather than remand for sentencing, and he expressly requests that we affirm his conviction if we do not grant a dismissal. Since it cannot be said that no penological purpose would be served by a remand, dismissal is not warranted and therefore we affirm on this basis (see People v Conceicao, 26 N.Y.3d 375, 385 n [2015]; People v Cosme, 66 Misc.3d 152 [A], 2020 NY Slip Op 50338[U] [App Term, 1st Dept 2020]).
As the People concede, defendant's conviction of petit larceny under docket number 2015NY075102 should be modified as indicated for the purpose of effectuating the plea bargain agreed upon by the parties and the court (see e.g. People v Smith, 109 A.D.3d 752 [2013], lv denied 22 N.Y.3d 1159 [2014]).
All concur.