People v. Ortega (Jason)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 11, 2018
• Docket: 2018 NYSlipOp 50859(U)
• Status: Published

Opinion

The People of the State of New York, Respondent,

against

Jason Ortega, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Barbara F. Newman, J.H.O.), rendered March 27, 2017, convicting him, upon a plea of guilty, of violating Public Health Law § 229, and imposing sentence.

Per Curiam.

Judgment of conviction (Barbara F. Newman, J.H.O.), rendered March 27, 2017, reversed, on the law, accusatory instrument dismissed, and fine, if paid, remitted.

As the People concede, defendant's conviction must be vacated since the plea record lacks the requisite "affirmative showing" that defendant understood and waived his Boykin rights (see Boykin v Alabama, 395 US 238, 242 [1969]; People v Tyrell, 22 NY3d 359, 365 [2013]). The People also agree that dismissal of the accusatory instrument is the appropriate corrective action in this particular case (cf. People v Conceicao, 26 NY3d 375, 385 n 1 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 11, 2018