Opinion
2013-06-7
The PEOPLE of the State of New York, Respondent, v. Robert E. BADDING, Jr., Defendant–Appellant.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered July 14, 2011. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree and driving while ability impaired. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Jessamine I. Jackson of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered July 14, 2011. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree and driving while ability impaired.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Jessamine I. Jackson of Counsel), for Defendant–Appellant.Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3] ) and driving while ability impaired (Vehicle and Traffic Law § 1192 [1] ). At the outset, we note that the certificate of conviction incorrectly reflects that defendant was convicted of driving while intoxicated, and it must therefore be amended to reflect that he was convicted of driving while ability impaired ( see People v. Saxton, 32 A.D.3d 1286, 1286–1287, 821 N.Y.S.2d 353).
Contrary to defendant's contention, the record establishes that the waiver of the right to appeal was made knowingly, intelligently and voluntarily ( see People v. Zimmerman, 100 A.D.3d 1360, 1361, 953 N.Y.S.2d 427,lv. denied 20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334;see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Additionally, defendant waived the right to raise his contention with respect to suppression on appeal inasmuch as he pleaded guilty before County Court issued its suppression ruling ( see People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623; People v. Taylor, 43 A.D.3d 1400, 1400–1401, 842 N.Y.S.2d 660,lv. denied9 N.Y.3d 1039, 852 N.Y.S.2d 25, 881 N.E.2d 1212). Defendant's further contention that he was denied his statutory right to a speedy trial is foreclosed by his guilty plea ( see People v. Hansen, 95 N.Y.2d 227, 231 n. 3, 715 N.Y.S.2d 369, 738 N.E.2d 773;People v. Paduano, 84 A.D.3d 1730, 1730, 922 N.Y.S.2d 726;People v. Faro, 83 A.D.3d 1569, 1569, 921 N.Y.S.2d 599,lv. denied17 N.Y.3d 858, 932 N.Y.S.2d 23, 956 N.E.2d 804) and, in any event, does not survive the valid waiver of the right to appeal ( see Paduano, 84 A.D.3d at 1730, 922 N.Y.S.2d 726).
As the People correctly concede, however, the sentence imposed for driving while ability impaired is illegal. The court indicated at sentencing that defendant was convicted of driving while intoxicated and sentenced him for that misdemeanor offense, but defendant actually pleaded guilty to driving while ability impaired, which is a traffic infraction ( seeVehicle and Traffic Law § 1193[1] ). We therefore modify the judgment by vacating the sentence imposed for driving while ability impaired under the third count of the indictment, and we remit the matter to County Court for resentencing on that count.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence imposed for driving while ability impaired under the third count of the indictment and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing on that count.