Opinion
5532 Ind. 1098/12
01-25-2018
The PEOPLE of the State of New York, Respondent, v. Edwin DURAN, Defendant–Appellant.
Rosemary Herbert, Office of the Appellate Defender, New York (Stephen R. Strother of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Rosemary Herbert, Office of the Appellate Defender, New York (Stephen R. Strother of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Acosta, P.J., Renwick, Kapnick, Kahn, Kern, JJ.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered December 10, 2014, convicting defendant, upon his plea of guilty, of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of sixteen years to life, unanimously affirmed.
The court properly adjudicated defendant a persistent violent felony offender. Defendant did not meet his burden of establishing that his 1993 plea conviction was unconstitutionally obtained (see People v. Harris, 61 N.Y.2d 9, 15, 471 N.Y.S.2d 61, 459 N.E.2d 170 [1983] ).
During the allocution on defendant's 1993 plea to second-degree burglary, defendant offered an "explanation," the gist of which was that he entered the premises at issue for the purpose of obtaining money owed to his wife. Defendant characterizes this explanation as asserting a claim of right defense (see Penal Law § 155.15[1] ), thus negating the element of intent to commit a crime. However, the court engaged in a colloquy with defendant that was sufficient to ensure he understood he was admitting that his intent was nevertheless unlawful, because he was not permitted to use self-help to acquire cash in satisfaction of a debt (see People v. Green, 5 N.Y.3d 538, 543–544, 807 N.Y.S.2d 321, 841 N.E.2d 289 [2005] ).
As a condition of the 1993 plea, the court required defendant to withdraw an unspecified constitutional challenge to a 1987 predicate conviction, the validity of which is not at issue on this appeal. We do not find that this plea condition rendered the plea unconstitutional (see People v. McClemore, 276 A.D.2d 32, 37, 716 N.Y.S.2d 497 [4th Dept. 2000] ).
Defendant's claim that the 1993 plea was unconstitutionally obtained because the plea court's enumeration of defendant's rights under Boykin v. Alabama (395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ) was deficient, is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we find that the record as a whole establishes the voluntariness of the plea (see People v. Sougou, 26 N.Y.3d 1052, 23 N.Y.S.3d 121, 44 N.E.3d 196 [2015] ).