Opinion
2018–14940 Ind. No. 1673/18
12-02-2020
The PEOPLE, etc., Respondent, v. Salvador GUEVARA–LOPEZ, Appellant.
Laurette D. Mulry, Riverhead, N.Y. (Anju M. Alexander of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Nicole L. Gallo of counsel), for respondent.
Laurette D. Mulry, Riverhead, N.Y. (Anju M. Alexander of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Nicole L. Gallo of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, VALERIE BRATHWAITE–NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Suffolk County (Stephen Braslow, J.), rendered December 4, 2018, convicting him of aggravated driving while intoxicated with a child (2 counts), driving while intoxicated, per se, driving while intoxicated, endangering the welfare of a child, and operating a motor vehicle the wrong way on a one-way roadway, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid, as the County Court's colloquy mischaracterized the scope of the waiver (see People v. Thomas, 34 N.Y.3d 545, 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Moreover, even a valid waiver of the right to appeal would not preclude review of the defendant's claim with respect to the voluntariness of his plea (see People v. Murphy, 114 A.D.3d 704, 704–705, 979 N.Y.S.2d 829 ).
The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent is unpreserved for appellate review, as he did not move to vacate his plea prior to the imposition of sentence or otherwise raise the issue before the County Court (see People v. Pray, 183 A.D.3d 842, 842, 124 N.Y.S.3d 59 ; People v. Karadag, 181 A.D.3d 620, 117 N.Y.S.3d 590 ; People v. Palladino, 140 A.D.3d 1194, 1194–1195, 33 N.Y.S.3d 469 ).
In any event, the defendant's contention is without merit. The chronology in which the County Court conducted the plea allocution does not render his plea invalid (see People v. Pray, 183 A.D.3d at 842, 124 N.Y.S.3d 59 ; People v. Martinez, 159 A.D.3d 836, 836, 69 N.Y.S.3d 820 ). Moreover, "[a] guilty plea is not invalid solely because the trial court failed to recite a defendant's constitutional rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 " ( People v. Pellegrino, 26 N.Y.3d 1063, 1063, 23 N.Y.S.3d 145, 44 N.E.3d 220 ; accord People v. Conceicao, 26 N.Y.3d 375, 379, 23 N.Y.S.3d 124, 44 N.E.3d 199 ). "The County Court's failure to recite all of the Boykin rights does not warrant vacatur of the defendant's guilty plea, as the record as a whole affirmatively demonstrates that the defendant entered his plea understandingly and voluntarily" ( People v. Karadag, 181 A.D.3d at 621, 117 N.Y.S.3d 590 ; see People v. Conceicao, 26 N.Y.3d at 383, 23 N.Y.S.3d 124, 44 N.E.3d 199 ). Here, the court's express advisement to the defendant that by pleading guilty he was waiving certain constitutional rights, taken together with the rationality of the plea and the other assurances of voluntariness provided on the record, demonstrate that the defendant's plea of guilty was knowing, voluntary, and intelligent (see People v. Harris, 61 N.Y.2d at 21–22, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. Pray, 183 A.D.3d at 843, 124 N.Y.S.3d 59 ; People v. Jackson, 114 A.D.3d 807, 808, 979 N.Y.S.2d 704 ).
MASTRO, J.P., CHAMBERS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.