Opinion
2017-707 K CR
02-21-2020
The PEOPLE of the State of New York, Respondent, v. Alexander CHEATHAM, Appellant.
Appellate Advocates (Jonathan Schoepp-Wong of counsel), for appellant. Kings County District Attorney (Leonard Joblove and Jill Oziemblewski of counsel), for respondent.
Appellate Advocates (Jonathan Schoepp-Wong of counsel), for appellant.
Kings County District Attorney (Leonard Joblove and Jill Oziemblewski of counsel), for respondent.
PRESENT: MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
ORDERED that the sentences are affirmed.
In September 2015, defendant was charged in an accusatory instrument with driving while ability impaired ( Vehicle and Traffic Law § 1192 [1] ), driving while intoxicated (per se) ( Vehicle and Traffic Law § 1192 [2] ), driving while intoxicated (common law) ( Vehicle and Traffic Law § 1192 [3] ), aggravated unlicensed operation of a motor vehicle in the third degree ( Vehicle and Traffic Law § 511 [1] [a] ) and operating a vehicle without a valid license ( Vehicle and Traffic Law § 509 [1] ). In March 2016, defendant, while represented by counsel from the Legal Aid Society, entered into a negotiated conditional plea agreement, pursuant to which defendant would plead guilty to driving while ability impaired and driving while intoxicated per se, but was promised that, upon his successful completion of certain treatment and community service, he would be permitted to withdraw his plea of guilty to the charge of driving while intoxicated per se, and he would be convicted only of driving while ability impaired and be sentenced to a 90-day license suspension, a fine of $300, a mandatory surcharge of $255, a conditional discharge and the installation of an ignition interlock device on his vehicle for one year. Defendant agreed that, in the event he did not satisfy the conditions or was arrested for an offense within a year, he would be convicted of driving while intoxicated per se, a misdemeanor, and might be sentenced to a six-month license revocation, a fine of $500, a mandatory surcharge of $395, a certain period of alcohol treatment, the installation of an ignition interlock device on his vehicle for one year, and a conditional discharge or a term of incarceration of up to one year.
In January 2017, defendant was charged in an accusatory instrument with driving while ability impaired ( Vehicle and Traffic Law § 1192 [1] ), driving while intoxicated (common law) ( Vehicle and Traffic Law § 1192 [3] ), aggravated unlicensed operation of a motor vehicle in the third degree ( Vehicle and Traffic Law § 511 [1] [a] ), two counts disorderly conduct ( Penal Law § 240.20 [5], [7] ), obstruction of traffic ( Vehicle and Traffic Law § 407 ), operating a vehicle without a valid license ( Vehicle and Traffic Law § 509 [1] ) and littering (Administrative Code of City of NY § 16-118). Thereafter, defendant, while represented by counsel from the Legal Aid Society, pleaded guilty to driving while intoxicated (common law) ( Vehicle and Traffic Law § 1192 [3] ) in satisfaction of that entire accusatory instrument. In accordance with the terms of a plea agreement, defendant was sentenced to 20 days in jail, three years of probation, alcohol treatment, a six-month license revocation, the installation of an ignition interlock device on his vehicle for three years, a fine of $500, and a mandatory surcharge of $395. Furthermore, defendant acknowledged that he had violated the conditions of the conditional plea agreement on his 2015 charges by sustaining a new arrest and conviction. Consequently, for the 2015 charges, defendant was convicted of driving while intoxicated per se ( Vehicle and Traffic Law § 1192 [2] ) and was sentenced to a six-month license revocation, a fine of $500, a mandatory surcharge of $395, alcohol treatment, a conditional discharge, and the installation of an ignition interlock device on his vehicle for one year. On appeal, defendant contends that, based on his indigency, his sentences were excessive.
As a general rule, a defendant who has been sentenced according to the terms of a bargained-for plea and sentencing agreement will not be heard to complain that the sentence was unduly harsh or excessive (see People v. Galvez , 72 AD3d 838 [2010] ; People v. Ubiles , 59 AD3d 572 [2009] ; People v. Onyeukwu , 56 Misc 3d 140[A], 2017 NY Slip Op 51100[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; People v. Jackson , 49 Misc 3d 134[A], 2015 NY Slip Op 51464[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ). In any event, the determination of an appropriate sentence is a matter resting within the discretion of the sentencing court and should not be disturbed absent a clear abuse of discretion, a failure to observe sentencing principles, or the existence of mitigating or extraordinary circumstances (see People v. Vega , 73 AD3d 1218, 1218-1219 [2010] ; People v. Hansen , 290 AD2d 47, 57 [2002], affd 99 NY2d 339 [2003] ; People v. Suitte , 90 AD2d 80, 85-86 [1982] ; People v. Silverio , 63 Misc 3d 139[A], 2019 NY Slip Op 50571[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v. Onyeukwu , 56 Misc 3d 140[A], 2017 NY Slip Op 51100[U] ).
Under the circumstances presented, we find that the sentences imposed did not constitute an abuse of sentencing discretion or a failure to observe sentencing principles, and defendant has not demonstrated the existence of mitigating or extraordinary circumstances warranting a modification of the sentences in the interest of justice. Moreover, the fines are not inherently onerous and the fact that defendant was represented by counsel from the Legal Aid Society in the Criminal Court and, now on appeal, by assigned counsel is insufficient to merit the inference that he is unable to pay the fines (see People v. Watson , 90 AD3d 1666, 1668 [2011] ; People v. Silverio , 63 Misc 3d 139[A], 2019 NY Slip Op 50571[U] ; People v. Rosendo , 60 Misc 3d 131[A], 2018 NY Slip Op 51004[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] ). The record reveals that defendant had been employed by the Department of Education as a courier for more than 10 years, and there was no evidence in the record indicating that defendant lacked the resources to pay the fines or to install and maintain an ignition interlock device in any motor vehicle owned or operated by defendant for three years (see People v. Watson , 90 AD3d at 1668 ; People v. Baride , 62 Misc 3d 139[A], 2019 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v. Jackson , 49 Misc 3d 134[A], 2015 NY Slip Op 51464[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ). Although defendant now claims that he is indigent, he never sought relief from the fines by way of a CPL 420.10 (5) motion (see People v. Toledo , 101 AD3d 571 [2012] ), or from the ignition interlock device requirement as a condition of probation by way of a CPL 410.20 (1) motion for resentencing (see People v. Perez , 59 Misc 3d 134[A], 2018 NY Slip Op 50495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] ). Our disposition is without prejudice to defendant moving in the Criminal Court, if he be so advised, for relief from the fines and the ignition interlock device requirement (see e.g. People v. Wilson , 62 Misc 3d 137[A], 2019 NY Slip Op 50023[U] [App Term, 1st Dept 2019] ; People v. Perez , 59 Misc 3d 134[A], 2018 NY Slip Op 50495[U] ; People v. Ellsworth , 57 Misc 3d 157[A], 2017 NY Slip Op 51660[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ).
Accordingly, the sentences are affirmed.
WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur.