Summary
In Hofler, we conclude that it is unnecessary to inquire into defendant's diligence in seeking a reconstruction hearing.
Summary of this case from People v. ParrisOpinion
2432.
Decided December 9, 2003.
Judgment, Supreme Court, New York County (Franklin Weissberg, J.), rendered October 22, 1996, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, criminal possession of a weapon in the third degree and bail jumping in the first and second degrees, and sentencing him, as a persistent violent felony offender, to an aggregate term of 8 years, unanimously affirmed.
Eleanor J. Ostrow, for Respondent.
Salina M. Kanai, for Defendant-Appellant.
Before: Buckley, P.J., Andrias, Saxe, Williams, Gonzalez, JJ.
Although the minutes of his plea allocution cannot be located, defendant is not entitled to either reversal or a reconstruction hearing. Defendant has not rebutted the presumption of regularity attaching to judicial proceedings and has not articulated any appealable issue associated with his plea ( see People v. Glass, 43 N.Y.2d 283, 286, People v. Fabelo, 211 A.D.2d 517, lv denied 85 N.Y.2d 908; People v. Council, 162 A.D.2d 365, lv denied 76 N.Y.2d 984) . The presumption of regularity is particularly significant in guilty plea cases ( People v. Bell, 36 A.D.2d 406, affd 29 N.Y.2d 882), because "plea situations are ordinarily marked by the absence of controverted issues," and "in the plea situation the defendant tacitly indicates that no further judicial inquiry is required" ( People v. Lynn, 28 N.Y.2d 196, 202). Moreover, in this case, the sentencing minutes reveal that defendant did not move to withdraw his plea, and his failure to make such an application would seriously undermine his ability to challenge his plea on appeal ( see People v. Toxey, 86 N.Y.2d 725; People v. Lopez, 71 N.Y.2d 662, 665).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.