Opinion
04-18-2024
The PEOPLE of the State of New York, Respondent, v. Richard VESTER, Defendant-Appellant.
Twyla Carter, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Andrew H. Chung of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Andrew H. Chung of counsel), for respondent.
Renwick, P.J., Kapnick, Shulman, Rosado, O’Neill Levy, JJ.
Judgment, Supreme Court, New York County (Steven M. Statsinger, J.), rendered March 28, 2019, convicting defendant, upon his plea of guilty, of grand larceny in the third degree, and sentencing him to a term of one year, unanimously affirmed.
Defendant’s challenge to the voluntariness of his plea comes within the narrow exception to the preservation requirement (People v. Conceicao, 26 N.Y.3d 375, 381-382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015]). Defendant, who was sentenced immediately after his guilty plea during the same proceeding, had no "actual or practical ability" to object to the court’s alleged deficient explanation of the Boykin rights by moving to withdraw his plea (see People v. Rosa, 135 A.D.3d 434, 435, 22 N.Y.S.3d 423 [1st Dept. 2016], lv denied 27 N.Y.3d 968, 36 N.Y.S.3d 629, 56 N.E.3d 909 [2016]).
The record establishes that defendant’s plea was knowing, intelligent, and voluntary. The court informed defendant that, by pleading guilty, he was "giving up [his] right to a jury, where we question the witnesses that testify against you and remain silent." Although the rights were ineloquently stated, defendant was adequately apprised that he was foregoing his right to a trial by jury, right to confront his accusers, and right against self-incrimination (see People v. Terrell, 134 AD.3d 651, 652, 21 N.Y.S.3d 619 [1st Dept. 2015], lv denied 27 N.Y.3d 1075, 38 N.Y.S.3d 846, 60 N.E.3d 1212 [2016]; People v. Suarez, 132 A.D.3d 550, 17 N.Y.S.3d 862 [1st Dept. 2015]). Moreover, the record reflects that defendant had consulted with counsel about the constitutional consequences of a guilty plea before taking the plea, which further supports the knowing and intelligent nature of defendant’s plea (see People v. Sosa, 28 N.Y.3d 965, 966, 38 N.Y.S.3d 834, 60 N.E.3d 1200 [2016]; People v. Hayes, 220 A.D.3d 427, 428, 197 N.Y.S.3d 486 [1st Dept. 2023], lv denied 40 N.Y.3d 1080, 202 N.Y.S.3d 764, 225 N.E.3d 883 [2023]; Rosa, 135 A.D.3d at 435, 22 N.Y.S.3d 423).