Opinion
16551 2309/12
01-07-2016
The PEOPLE of the State of New York, Respondent, v. Christopher ROSA, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Anita Aboagye–Agyeman of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Paul B. Hershan of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Anita Aboagye–Agyeman of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Paul B. Hershan of counsel), for respondent.
Opinion
Judgment, Supreme Court, Bronx County (Edgar G. Walker, J.), rendered May 16, 2012, convicting defendant, upon his plea of guilty, of aggravated unlicensed operation of a motor vehicle in the third degree, and sentencing him to a fine of $300, unanimously affirmed.
Generally, a defendant must move to withdraw the plea or to vacate the judgment of conviction to preserve a claim that a guilty plea is invalid (see People v. Conceicao, 26 N.Y.3d 375, 381, ––– N.Y.S.3d ––––, –––N.E.3d ––––, 2015 N.Y. Slip Op. 08615, *3 2015 ). However, a narrow exception exists “where the particular circumstances of a case reveal that a defendant had no actual or practical ability to object to an alleged error in the taking of a plea that was clear from the face of the record” (id., citing People v. Louree, 8 N.Y.3d 541, 546, 838 N.Y.S.2d 18, 869 N.E.2d 18 2007 ). Here, defendant's claims are reviewable on direct appeal. Defendant “faced a practical inability to move to withdraw” the plea, because he was sentenced on the same date as the plea (Conceicao at *3).
As to the validity of the plea, a failure to recite the Boykin rights does not automatically invalidate an otherwise voluntary and intelligent plea (Conceicao at *4). The record here shows that defendant knowingly, intelligently, and voluntarily waived his constitutional rights (see People v. Harris, 61 N.Y.2d 9, 17–19, 471 N.Y.S.2d 61, 459 N.E.2d 170 1983 ). The plea occurred 10 months after defendant had been arrested and charged, and he had counsel on the case. On the date of the plea, at the beginning of the plea proceeding, without the need for additional discussion with defendant or the prosecutor, defendant's attorney stated that defendant had decided to plead guilty. This further supports the argument that defendant had made the decision to plead guilty after consulting with counsel before the start of the plea proceeding (see Conceicao at *4). Additionally, defendant, through his attorney, waived a more detailed allocution. While the plea allocution could have been more robust, the record here establishes a knowing, intelligent, and voluntary waiver (id.).