People v. Duvivier

Appellate Division of the Supreme Court of New York

People v. Duvivier

126 A.D.3d 649, 4 N.Y.S.3d 483

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 31, 2015

Docket14673 1903N/11

StatusPublished

This text of 126 A.D.3d 649 (People v. Duvivier) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Duvivier, 126 A.D.3d 649, 4 N.Y.S.3d 483 (N.Y. Ct. App. 2015).

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Opinion

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered January 23, 2013, convicting defendant, upon his plea of guilty, of conspiracy in the second and fourth degrees and criminal possession of a controlled substance in the second degree, and sentencing him to an aggregate term of three years, unanimously affirmed.

Defendant’s challenges to the factual portion of his plea allocution and to the court’s discussion of defendant’s rights under Boykin v Alabama (395 US 238 [1969]) are unpreserved, and they do not come within the narrow exception to the preservation requirement (see People v Tyrell, 22 NY3d 359, 364 [2013]; People v Peque, 22 NY3d 168, 182 [2013]). We decline to review these claims in the interest of justice.

As an alternate holding, we find no basis for reversal. The plea was knowing, intelligent and voluntary. Viewing the plea proceeding as a whole, we find that defendant’s factual recitations did not cast significant doubt on his guilt (see People v Toxey, 86 NY2d 725 [1995]). We also find that the court sufficiently advised defendant of the rights he was giving up by pleading guilty (see Tyrell, 22 NY3d at 365; People v Harris, 61 NY2d 9, 16 [1983]).

Concur — Friedman, J.P., Renwick, Moskowitz, Richter and Clark, JJ.

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Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered January 23, 2013, convicting defendant, upon his plea of guilty, of conspiracy in the second and fourth degrees and criminal possession of a controlled substance in the second degree, and sentencing him to an aggregate term of three years, unanimously affirmed.

Defendant’s challenges to the factual portion of his plea allocution and to the court’s discussion of defendant’s rights under Boykin v Alabama (395 US 238 [1969]) are unpreserved, and they do not come within the narrow exception to the preservation requirement (see People v Tyrell, 22 NY3d 359, 364 [2013]; People v Peque, 22 NY3d 168, 182 [2013]). We decline to review these claims in the interest of justice.

As an alternate holding, we find no basis for reversal. The plea was knowing, intelligent and voluntary. Viewing the plea proceeding as a whole, we find that defendant’s factual recitations did not cast significant doubt on his guilt (see People v Toxey, 86 NY2d 725 [1995]). We also find that the court sufficiently advised defendant of the rights he was giving up by pleading guilty (see Tyrell, 22 NY3d at 365; People v Harris, 61 NY2d 9, 16 [1983]).

Concur — Friedman, J.P., Renwick, Moskowitz, Richter and Clark, JJ.

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Bluebook (online)

126 A.D.3d 649, 4 N.Y.S.3d 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-duvivier-nyappdiv-2015.

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