PEOPLE v. SMITH (2023)

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

The PEOPLE of the State of New York, Respondent, v. Dwight SMITH, Defendant–Appellant.

546 Decided: June 27, 2023

Webber, J.P., Singh, Kennedy, Scarpulla, Pitt–Burke, JJ.

Jenay Nurse Guilford, Center for Appellate Litigation, New York (Matthew Bova of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Elliott Robert Hamilton of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Steven L. Barrett, J.), rendered March 27, 2019, convicting defendant, upon his plea of guilty, of attempted murder in the second degree, and sentencing him to a term of 15 years, unanimously affirmed.

At a calendar appearance at which defendant's attorney was unavailable, the court unequivocally informed defendant that it would not accept any plea offer that entailed a prison sentence of less than 15 years. 13 days later, after consulting with counsel, defendant pleaded guilty in exchange for a sentence of 15 years. By the time of this appeal, defendant has already completed his sentence.

Even if this ill-advised colloquy violated defendant's right to counsel, the remedy for any error would be vacatur of the guilty plea or dismissal of the indictment (see People v. Wardlaw, 6 N.Y.3d 556, 559–561, 816 N.Y.S.2d 399, 849 N.E.2d 258 [2006]). Defendant, however, specifically requests dismissal and not vacatur. As defendant has completed his sentence, we affirm (see People v. Teron, 139 A.D.3d 450, 29 N.Y.S.3d 175 [1st Dept. 2016]).

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