People v Smith, 2023 NY Slip Op 03438 [217 AD3d 607]

June 27, 2023

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Dwight Smith, Appellant.

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. Thirteen 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 NY3d 556 , 559-561 [2006]). Defendant, however, specifically requests dismissal and not vacatur. As defendant has completed his sentence, we affirm ( see People v Teron , 139 AD3d 450 [1st Dept 2016]). Concur—Webber, J.P., Singh, Kennedy, Scarpulla, Pitt-Burke, JJ..