People v. Jeudy

2017 NY Slip Op 6715, 153 A.D.3d 1203, 60 N.Y.S.3d 677

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 2017
• Docket: 4525 487/13
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Michael J. Obús, J.), rendered June 12, 2014, convicting defendant, upon her plea of guilty, of petit larceny, and sentencing her to time served, unanimously affirmed.

Defendant’s challenges to her initial plea to a felony are unpreserved (see People v Conceicao, 26 NY3d 375, 382 [2015]), and we decline to review them in the interest of justice. As an alternative holding, we find that the record as a whole demonstrates that the initial plea allocution was sufficient and that the plea was knowing, intelligent, and voluntary (see People v Tyrell, 22 NY3d 359, 365 [2013]).

After defendant complied with the conditions of her felony plea, she was permitted to replead to a misdemeanor. Although her challenge to the second plea proceeding is exempt from preservation requirements because sentence was immediately imposed, that challenge is unavailing because it was permissible for the court to incorporate the initial plea allocution by reference (see People v Muir, 134 AD3d 641 [1st Dept 2015], lv denied 26 NY3d 1147 [2016]).

In any event, the only relief defendant requests is dismissal of the indictment rather than vacatur of the plea, and she expressly requests this Court to affirm the conviction if it does not grant a dismissal. Since we do not find that dismissal would be appropriate, we affirm on this basis as well (see e.g. People v Teron, 139 AD3d 450 [1st Dept 2016]).

Concur — Tom, J.R, Maz-zarelli, Andrias, Oing and Singh, JJ.