People v. Niemczynski (Eugene)

73 Misc. 3d 128(A), 2021 NY Slip Op 50893(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: September 21, 2021
• Docket: 570578/19
• Status: Unpublished

Opinion

People v Niemczynski (2021 NY Slip Op 50893(U)) [*1]

People v Niemczynski (Eugene)

2021 NY Slip Op 50893(U) [73 Misc 3d 128(A)]

Decided on September 21, 2021

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 21, 2021

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Edmead, P.J., Brigantti, Hagler, JJ.
570578/19

The People of the State of New York, Respondent,

against

Eugene Niemczynski, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Michael J. Gaffey, J.), rendered April 25, 2019, convicting him, upon his plea of guilty, of criminal mischief in the fourth degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Michael J. Gaffey, J.) rendered April 25, 2019, affirmed.

The record as a whole established that the plea was knowing, intelligent and voluntary. Defendant waived formal allocution, admitted his guilt to the charged offense, stated that he had time to discuss his case with counsel, and waived specific constitutional rights, including his rights to trial, to call witnesses and to confront the People's witnesses (People v Conceicao, 26 NY3d 375 [2015]; People v Sougou, 26 NY3d 1052 [2015]). The plea court's duty to inquire was not triggered by defendant's postarrest statements that may have negated an element of the criminal mischief charge at issue, since defendant "did not reiterate those statements at [the] plea allocution" (People v Martorell, 88 AD3d 485 [2011], lv denied 18 NY3d 926 [2012][internal citation omitted]; see also People v Sosa, 172 AD3d 432, 433 [2019]).

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

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: September 21, 2021