| People v Nesbitt (Calvin) |
| 2014 NY Slip Op 50259(U) [42 Misc 3d 143(A)] |
| Decided on February 27, 2014 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendant appeals from a judgment of the Criminal Court of the City of New York,
New York County (Herbert J. Adlerberg, J.H.O.), rendered August 3, 2011, convicting
him, upon a plea of guilty, of theft of services, and imposing sentence.
Per Curiam.
Judgment of conviction (Herbert J. Adlerberg, J.H.O.), rendered August 3, 2011, reversed, on the law, and the accusatory instrument dismissed.
As the People now concede, defendant's theft of services conviction must be vacated since the plea record lacks the requisite "affirming showing" that defendant understood and waived his Boykin rights (see Boykin v Alabama, 395 US 238 [1969] People v Tyrell, ___ NY3d ___, 2013 NY Slip Op 08288 [2013]). Inasmuch as defendant has served his sentence, we dismiss the accusatory instrument in lieu of ordering a new trial, a disposition consented to by the People.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 27, 2014