Opinion
726 KA 21-00555
01-28-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JAMES ADAMS, DEFENDANT-APPELLANT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
Appeal from a judgment of the Supreme Court, Onondaga County (Gordon J. Cuffy, A.J.), rendered November 5, 2018. The judgment convicted defendant, upon a plea of guilty, of driving while intoxicated, as a class E felony, refusal to submit to a breath test and failure to keep right.
It is hereby ORDERED that the judgment so appealed from is modified on the law by reversing that part convicting defendant of count two of the indictment, vacating defendant's guilty plea to that count and dismissing that count, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of driving while intoxicated as a class E felony (Vehicle and Traffic Law §§ 1192 [3]; 1193 [4] [i]), "refus[ing a] breath test" (§ 1194 [1] [b]), and failure to keep right (§ 1120 [a]). Defendant pleaded guilty in the middle of trial after Supreme Court denied his request for a mistrial stemming from an evidentiary issue that arose during witness testimony.
Subject to an exception that does not apply here (see People v Rucinski, 24 A.D.3d 1171, 1173 [4th Dept 2005]; People v Roe, 191 A.D.2d 844, 845 [3d Dept 1993]), a conviction for a nonexistent offense constitutes a "fundamental" error that "cannot be waived" (People v Martinez, 81 N.Y.2d 810, 812 [1992]), need not be preserved (see People v Gant, 189 A.D.3d 2160, 2161 [4th Dept 2020], lv denied 36 N.Y.3d 1097 [2021]), and is not forfeited by a guilty plea (see People v Bethea, 61 A.D.3d 1016, 1017 [3d Dept 2009]; Rucinski, 24 A.D.3d at 1173; Roe, 191 A.D.2d at 845). We are obligated to correct such a fundamental error sua sponte despite the parties' failure to brief the issue (see People v McCann, 126 A.D.3d 1031, 1034 [3d Dept 2015], lv denied 25 N.Y.3d 1167 [2015]; Bethea, 61 A.D.3d at 1017). In this case, the purported traffic infraction to which defendant pleaded guilty under count two of the indictment-refusing the breath test mandated by Vehicle and Traffic Law § 1194 (1) (b)-is not a cognizable offense for which a person may be charged or convicted in a criminal court (see People v Bembry, 199 A.D.3d 1340, 1342 [4th Dept 2021]; People v Malfetano, 64 Misc.3d 135 [A], 2019 NY Slip Op 51147[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Villalta, 56 Misc.3d 59, 60-61 [App Term, 2d Dept, 9th & 10th Jud Dists 2017], lv denied 29 N.Y.3d 1135 [2017]; see generally People v Prescott, 95 N.Y.2d 655, 659 [2001]; People v Thomas, 46 N.Y.2d 100, 108 [1978], appeal dismissed 444 U.S. 891 [1979]). We therefore modify the judgment accordingly (see e.g. People v Santiago, 56 Misc.3d 127 [A], 2017 NY Slip Op 50813[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v Wrenn, 52 Misc.3d 141 [A], 2016 NY Slip Op 51193[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2016], lv denied 28 N.Y.3d 1032 [2016]; People v Carron, 51 Misc.3d 135 [A], 2016 NY Slip Op 50555[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).
As so modified, we affirm the judgment. By pleading guilty, defendant forfeited his challenge to the merits of the court's mistrial ruling (see e.g. People v Alvarado, 103 A.D.3d 1101, 1101 [4th Dept 2013], lv denied 21 N.Y.3d 910 [2013]; People v Robles, 160 A.D.2d 252, 252-253 [1st Dept 1990], lv denied 76 N.Y.2d 795 [1990]; People v Pampalone, 48 Misc.3d 129 [A], 2015 NY Slip Op 50982[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; see generally People v West, 184 A.D.2d 743, 744 [2d Dept 1992], lv denied 81 N.Y.2d 767 [1992]). Contrary to defendant's related contention, the court's mistrial ruling did not constitute coercion that negated the voluntariness of his subsequent guilty plea (see People v Lawson, 94 A.D.2d 809, 809-810 [3d Dept 1983]; People v Jones, 81 A.D.2d 22, 45-49 [2d Dept 1981]; see generally Bordenkircher v Hayes, 434 U.S. 357, 364 [1978]; cf. People v Grant, 61 A.D.3d 177, 182-184 [2d Dept 2009]). Contrary to defendant's further contention, "it is well established that [his] monosyllabic... responses to questioning by [the court did] not render his plea unknowing and involuntary" (People v Rathburn, 178 A.D.3d 1421, 1421 [4th Dept 2019], lv denied 35 N.Y.3d 944 [2020] [internal quotation marks omitted]).
Defendant's remaining contention is academic. Finally, we note that the uniform sentence and commitment form fails to reflect defendant's conviction of and sentence for the traffic infraction of failing to keep right (Vehicle and Traffic Law § 1120 [a]) under count three of the indictment, and the form must be corrected accordingly.
All concur except Troutman, J., who is not participating.