People v. Bolta (Andy)

People v Bolta (2021 NY Slip Op 50600(U)) [*1] People v Bolta (Andy) 2021 NY Slip Op 50600(U) [72 Misc 3d 128(A)] Decided on June 25, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports. Decided on June 25, 2021 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: McShan, J.P., Brigantti, Hagler, JJ. 570416/18 The People of the State of New York, Respondent, against Andy Bolta, Defendant-Appellant. In consolidated criminal appeals, defendant appeals from two judgments of the Criminal Court of the City of New York, New York County (Richard M. Weinberg, J., at plea; Patricia M. Nunez, J., at sentencing), rendered May 31, 2018, convicting him, upon his pleas of guilty, of criminal possession of stolen property in the fifth degree and criminal contempt in the second degree, and imposing sentence. Per Curiam. Judgments of conviction (Richard M. Weinberg, J., at plea; Patricia M. Nunez, J., at sentencing), rendered May 31, 2018, affirmed. Defendant's challenge to his guilty plea under docket Number 2014NY015443 is unpreserved, since he failed to make an appropriate postallocution motion or otherwise raise the challenge in the plea court, despite ample opportunity to do so within the three years between his guilty plea and sentencing (see People v Laroche, 142 AD3d 872 [2016], lv denied 28 NY3d 1073 [2016]). We decline to review this challenge in the interest of justice. As an alternative holding, we find that the plea was knowing, intelligent and voluntary. The plea court's duty to inquire was not triggered by defendant's postarrest statements that may have suggested a possible defense to the possession of stolen property charge to which he pleaded guilty, since defendant "did not reiterate those statements at [the] plea allocution" (People v Martorell, 88 AD3d 485 [2011], lv denied 18 NY3d 926 [2012][internal citation omitted]; see also People v Sosa, 172 AD3d 432, 433 [2019]). We also find unavailing defendant's challenge to the facial sufficiency of the accusatory instrument under docket number 2014NY067707. While it is not disputed that the criminal contempt charge was jurisdictionally defective (see People v Hardy, 35 NY3d 466 [2020]), defendant's guilty plea was valid because the accusatory instrument also contained "an equal grade offense properly pleaded" (People v Thiam, 34 NY3d 1040, 1049 [2019, DiFiore, Ch. J., concurring]; see People v Tagiev, 70 Misc 3d 47 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). In this regard, and in view of defendant's knowing waiver of the right to prosecution by [*2]information (see People v Dumay, 23 NY3d 518, 522 [2014]), the factual allegations were sufficient to establish reasonable cause to believe that defendant was guilty of the charged offense of unlawful imprisonment in the second degree (see Penal Law § 135.05). The instrument recites that when defendant went to the complainant's apartment on September 2, 2014, the complainant stated that he would call the police. When complainant went into his bedroom, defendant shut the door to that room and refused to let complainant out, causing complainant to fear for his physical safety (see People v Jordan, 43 Misc 3d 1210[A], 2014 NY Slip Op 50568[U] [Crim Ct, NY County 2014]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concurI concurI concur Decision Date: June 25, 2021