People v. Diaz

• Decision Date: 03 December 2013
• Citation: 2013 N.Y. Slip Op. 08025,975 N.Y.S.2d 670,112 A.D.3d 423
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose DIAZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 423
975 N.Y.S.2d 670
2013 N.Y. Slip Op. 08025

The PEOPLE of the State of New York, Respondent,
v.
Jose DIAZ, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Dec. 3, 2013.

Steven Banks, The Legal Aid Society, New York (Laura Boyd of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Bari L. Kamlet of counsel), for respondent.

Judgment, Supreme Court, Bronx County (William McGuire, J.), rendered March 11, 2011, convicting defendant, upon his plea of guilty, of operating a motor vehicle while under the influence of alcohol, and sentencing him to a conditional discharge and a $500 fine, unanimously affirmed.

Since defendant never moved to withdraw his guilty plea or to vacate the judgment of conviction, his challenge to the voluntariness of his plea is unpreserved, and we decline to review it in the interest of justice (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). The narrow exception to the

[975 N.Y.S.2d 671]

preservation rule is not applicable because nothing in the plea allocution casts doubt on defendant's guilt ( see id.). As an alternative holding, we find, based on all the relevant circumstances, that defendant entered into his plea knowingly, voluntarily, and intelligently ( see People v. Nyarko, 93 A.D.3d 555, 940 N.Y.S.2d 486 [1st Dept.2012], lv. denied19 N.Y.3d 965, 950 N.Y.S.2d 117, 973 N.E.2d 215 [2012] ).

In any event, the only relief defendant requests is a dismissal of the information, and he expressly requests this Court to affirm his conviction if it does not grant a dismissal. Since dismissal is not warranted, we affirm on this basis as well ( see People v. Schweitzer, 83 A.D.3d 503, 922 N.Y.S.2d 295 [1st Dept.2011], lv. denied17 N.Y.3d 800, 929 N.Y.S.2d 109, 952 N.E.2d 1104 [2011] ).

ANDRIAS, J.P., ACOSTA, MOSKOWITZ, RICHTER, MANZANET–DANIELS, JJ., concur.