PEOPLE v. VARGAS (2017)

Judgments, Supreme Court, Bronx County (John S. Moore, J. at fourth-degree sale plea;  Albert Lorenzo, J. at third-degree sale plea and sentencing), rendered May 12, 2014, convicting defendant of criminal sale of a controlled substance in the third and fourth degrees, and sentencing him to concurrent terms of 1 1/212 years, unanimously affirmed.

 Defendant's challenge to the court's recitation, at the time of his plea of guilty to fourth-degree sale, of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) does not fall within the narrow exception to the preservation requirement (see People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ).   Defendant was sentenced nearly a year later, after pleading guilty to the subsequent third-degree sale charge (about which he raises no Boykin issue), and the record fails to support his claim that he lacked the practical ability to move to withdraw the first plea.   We decline to review defendant's claim in the interest of justice.   As an alternative holding, we find that the record establishes that the plea was knowing, intelligent and voluntary (see People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013];  People v. Harris, 61 N.Y.2d 9, 16–19, 471 N.Y.S.2d 61, 459 N.E.2d 170 [1983] ), notwithstanding the claimed deficiencies in the Boykin warnings (see e.g. People v. Williams, 137 A.D.3d 706, 27 N.Y.S.3d 381 [1st Dept.2016], lv. denied 27 N.Y.3d 1141, 39 N.Y.S.3d 123, 61 N.E.3d 522 [2016] ).