PEOPLE v. TENESACA (2021)

Judgment of conviction (Phyllis Chu, J.), rendered March 14, 2018, affirmed.

Defendant's guilty plea was knowing, intelligent and voluntary. At the plea proceeding, defendant, represented by counsel, knowingly acknowledged his desire to plead guilty to second-degree harassment, a violation, in satisfaction of an accusatory instrument charging two class A misdemeanors, stated that he had an opportunity to speak to his attorney about the plea, and acknowledged his understanding of the rights he was waiving by pleading guilty (see Boykin v Alabama, 395 US 238 [1969]), including the right to a trial, the right to call witnesses, and the right to have his lawyer present a defense (see People v Conceicao, 26 NY3d 375, 382 [2015]; People v Sougou, 26 NY3d 1052, 1054 [2015]). Defendant also executed a form acknowledging receipt of a written copy of the terms of the conditional discharge and its expiration date (see CPL 410.10[1]; People v Valentin, 66 Misc 3d 136[A], 2020 NY Slip Op 50044[U][App Term, 1st Dept 2020]). Defendant's contention that his guilty plea was coerced by the presence in the accusatory instrument of the two misdemeanor charges that he claims were jurisdictionally defective is unpreserved for our review, since defendant did not make an appropriate postallocution motion. A claim that a defective count impacted a defendant's decision to plead guilty is not exempt from preservation requirements (see People v Tavarez, 184 AD3d 416, 417 [2020], lv denied 35 NY3d 1070 [2020]). As an alternative holding, we find that there is nothing in the record to indicate that the presence of any allegedly defective counts impacted defendant's choice to enter into the plea agreement.

In any event, the only relief defendant requests is dismissal of the accusatory instrument rather than vacatur of the plea, and he expressly requests that this Court affirm the conviction if it does not grant a dismissal. Since we do not find that dismissal would be appropriate, we affirm on this basis as well (see People v Vargas, 162 AD3d 531 [2018], lv denied 32 NY3d 942 [2018]).

Per Curiam.

All concur