People v. Adolph , 2020 NY Slip Op 05869 ( 2020 )

People v Adolph (2020 NY Slip Op 05869)

People v Adolph

2020 NY Slip Op 05869

Decided on October 20, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 20, 2020
Before: Kapnick, J.P., Singh, Kennedy, Mendez, JJ.

FalseAppeal No. 12108 Case No. 2016-2039

[*1]The People of the State of New York, Respondent,

v

Trevor Adolph, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Amy Donner of counsel), for appellant.

Cyrus R. Vance, District Attorney, New York (Eleanor J. Ostrow of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard M. Weinberg, J.), rendered February 1, 2016, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him to a term of five years' probation, unanimously affirmed.

Defendant's challenges to his plea are unpreserved (see People v Conceicao, 26 NY3d 375, 382 [2015]), and we decline to review them in the interest of justice. As an alternative holding, we find that the record as a whole demonstrates that, notwithstanding any deficiencies in the plea colloquy, defendant's plea was knowing, intelligent, and voluntary (see People v Tyrell, 22 NY3d 359, 365 [2013]; People v Velez, 138 AD3d 418 [1st Dept 2016], lv denied 27 NY3d 1140 [2016]); People v Gillens, 134 AD3d 655 [1st Dept 2015]).

In any event, defendant requests dismissal of the indictment rather than vacatur of the plea, and he expressly requests this Court to 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 e.g. People v Teron, 139 AD3d 450 [1st Dept 2016]).

Defendant's argument concerning a civil forfeiture that was not part of his sentence is waived, unpreserved, and unavailing. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 20, 2020