Opinion
2021-50600 Index 570416/18
06-25-2021
The People of the State of New York, Respondent, v. Andy Bolta, Defendant-Appellant.
Unpublished Opinion
In consolidated criminal appeals, defendant appeals from two judgments of the Criminal Court of the City of New York, New York County (Richard M. Weinberg, J., at plea; Patricia M. Nunez, J., at sentencing), rendered May 31, 2018, convicting him, upon his pleas of guilty, of criminal possession of stolen property in the fifth degree and criminal contempt in the second degree, and imposing sentence.
PRESENT: McShan, J.P., Brigantti, Hagler, JJ.
PER CURIAM.
Judgments of conviction (Richard M. Weinberg, J., at plea; Patricia M. Nunez, J., at sentencing), rendered, affirmed.
Defendant's challenge to his guilty plea under docket Number 2014NY015443 is unpreserved, since he failed to make an appropriate postallocution motion or otherwise raise the challenge in the plea court, despite ample opportunity to do so within the three years between his guilty plea and sentencing (see People v Laroche, 142 A.D.3d 872 [2016], lv denied 28 N.Y.3d 1073 [2016]). We decline to review this challenge in the interest of justice. As an alternative holding, we find that the plea was knowing, intelligent and voluntary. The plea court's duty to inquire was not triggered by defendant's postarrest statements that may have suggested a possible defense to the possession of stolen property charge to which he pleaded guilty, since defendant "did not reiterate those statements at [the] plea allocution" (People v Martorell, 88 A.D.3d 485 [2011], lv denied 18 N.Y.3d 926 [2012][internal citation omitted]; see also People v Sosa, 172 A.D.3d 432, 433 [2019]).
We also find unavailing defendant's challenge to the facial sufficiency of the accusatory instrument under docket number 2014NY067707. While it is not disputed that the criminal contempt charge was jurisdictionally defective (see People v Hardy, 35 N.Y.3d 466 [2020]), defendant's guilty plea was valid because the accusatory instrument also contained "an equal grade offense properly pleaded" (People v Thiam, 34 N.Y.3d 1040, 1049 [2019, DiFiore, Ch. J., concurring]; see People v Tagiev, 70 Misc.3d 47 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). In this regard, and in view of defendant's knowing waiver of the right to prosecution by information (see People v Dumay, 23 N.Y.3d 518, 522 [2014]), the factual allegations were sufficient to establish reasonable cause to believe that defendant was guilty of the charged offense of unlawful imprisonment in the second degree (see Penal Law § 135.05). The instrument recites that when defendant went to the complainant's apartment on September 2, 2014, the complainant stated that he would call the police. When complainant went into his bedroom, defendant shut the door to that room and refused to let complainant out, causing complainant to fear for his physical safety (see People v Jordan, 43 Misc.3d 1210 [A], 2014 NY Slip Op 50568[U] [Crim Ct, NY County 2014]).