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Appellate Term, First Department:November 18, 2019

Appellate Term, First Department:November 18, 2019

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By: Shulman, P.J., Cooper, Edmead, JJ. 15-355. THE PEOPLE OF THE STATE OF NEW YORK, res, v. CYNTHIA MATYAS, def-app — Judgment of conviction (Herman Klarsfeld, J.H.O.), rendered April 7, 2015, reversed, on the law, and the accusatory instrument dismissed. As the People concede, defendant’s conviction must be vacated since the plea record lacks the requisite “affirmative showing” that defendant understood and waived her Boykin rights (see Boykin v. Alabama, 395 US 238 [1969]). The People also agree that dismissal of the accusatory instrument is the appropriate corrective action in this particular case (cf. People v. Conceicao, 26 NY3d 375, 385 n 1 [2015]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

By: Shulman, P.J., Cooper, Edmead, JJ. 18-246. THE PEOPLE OF THE STATE OF NEW YORK, res, v. BYRON HARKLESS, def-app — Judgment of conviction (David Frey, J., at plea; Heidi C. Cesare, J., at sentencing), rendered November 3, 2017, affirmed. The record establishes that defendant’s guilty plea was knowing, intelligent and voluntary. Defendant confirmed that he was pleading guilty freely and voluntarily, that he was, in fact, guilty, that he had the opportunity to discuss the plea with his attorney, and that he understood that he was giving up the rights to a trial, to remain silent and to confront witnesses (see People v. Conceicao, 26 NY3d 375, 383 [2015]). Nothing in the record suggests that defendant’s ability to make a voluntary decision to plead guilty was impaired by his use (or “potential” use) of any “substances,” and the court was able to view defendant’s demeanor and assess his capacity to plead guilty (see People v. Alexander, 97 NY2d 482, 486 [2002]). In any event, the only relief defendant requests is dismissal of the accusatory instrument, and he expressly requests that this Court affirm his conviction if it does not grant dismissal. Since dismissal is not warranted, we affirm on this basis as well (see People v. Teron, 139 AD3d 450 [2016]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

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