People v Lopez, 2023 NY Slip Op 01054 [213 AD3d 606]

February 23, 2023

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Ricardo Lopez, Appellant.

Twyla Carter, The Legal Aid Society, New York (Samuel Claflin of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Philip V. Tisne of counsel), for respondent.

Judgment, Supreme Court, New York County (Felicia A. Mennin, J.), rendered May 8, 2018, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of 3 1/2 years, unanimously affirmed.

Defendant was correctly adjudicated a second felony drug offender previously convicted of a violent felony, and he did not meet his burden of establishing that his 2004 conviction was unconstitutionally obtained ( see CPL 400.21 [7] [b]; People v Harris , 61 NY2d 9, 15 [1983]). The minutes of defendant’s 2004 plea proceeding reveal that he pleaded guilty to assault in the second degree knowingly, intelligently, and voluntarily ( see id. at 19-21; see also Boykin v Alabama , 395 US 238, 243 [1969]). Although the court did not enumerate all of defendant’s rights during the plea colloquy, the record demonstrates that defendant “intelligently and understandingly rejected his constitutional rights” after consulting with counsel in order to take advantage of the negotiated preindictment plea offer ( see People v Conceicao , 26 NY3d 375 , 383 [2015]; People v Cepeda , 195 AD3d 477 [1st Dept 2021], lv denied 37 NY3d 991 [2021]). Concur—Renwick, J.P., González, Shulman, Rodriguez, Higgitt, JJ..