People v. Tyrell

• Decision Date: 16 July 2012
• Citation: 37 Misc.3d 16,952 N.Y.S.2d 370,2012 N.Y. Slip Op. 22191
• Parties: The PEOPLE of the State of New York, Respondent, v. Cavell Craig TYRELL, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

37 Misc.3d 16

952 N.Y.S.2d 370

2012 N.Y. Slip Op. 22191

The PEOPLE of the State of New York, Respondent,

v.Cavell Craig TYRELL, Defendant–Appellant.

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

July 16, 2012.

Cyrus R. Vance, Jr., District Attorney, New York City (Ryan Gee of counsel), for respondent.

Legal Aid Society, New York City (Harold V. Ferguson, Jr., of counsel), for appellant.

PRESENT: SHULMAN, J.P., HUNTER, JR., TORRES, JJ.

PER CURIAM.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Ruth Pickholz, J.), rendered March 1, 2009, convicting him, upon his plea of guilty, of criminal possession of marijuana in the fifth degree, and imposing sentence.

Judgment of conviction (Ruth Pickholz, J.), rendered March 1, 2009, affirmed.

Since defendant did not move to withdraw his guilty plea, and since this case does not come within the narrow exception to the preservation requirement ( see People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ), his challenges to the validity of the plea are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. Defendant's counseled guilty plea to one count of fifth-degree criminal possession of marihuana—with the understanding that he would be sentenced to time served and in full satisfaction of an information whose top count was a fourth-degree criminal sale of marihuana charge potentially punishable by a one-year jail sentence—was knowing, intelligent and voluntary. Further, a plea of guilty will be sustained in the absence of a factual allocution where, as here, there is no indication that the guilty plea assented to by the defendant in the presence of counsel was improvident or baseless ( see People v. Fooks [ People v. Nixon,] 21 N.Y.2d 338, 350, 287 N.Y.S.2d 659, 234 N.E.2d 687 [1967];People v. Winbush, 199 A.D.2d 447, 448, 605 N.Y.S.2d 385 [1993];People v. Moore, 91 A.D.2d 1050, 458 N.Y.S.2d 649 [1983] ). Granted, the better practice is for the plea court to ensure that some elicitation of the underlying facts of the crime pleaded to appears on the record. However, the Court of Appeals has “repeatedly steered clear of a uniform mandatory catechism of pleading defendants' in favor of broad discretions controlled by flexible standards' ” ( People v. Alexander, 19 N.Y.3d 203, 947 N.Y.S.2d 386, 970 N.E.2d 409 [2012], quoting People v. Nixon, 21 N.Y.2d at 353–354, 287 N.Y.S.2d 659, 234 N.E.2d 687), and has made clear that it will uphold plea agreements accepted without the benefit of a factual allocution where the record shows that the defendant “understood the charges and made an intelligent decision to enter a plea” ( People v. Goldstein, 12 N.Y.3d 295, 301, 879...