Opinion
2016–03333 2016–03334 Ind. Nos. 254–10 232–15
03-14-2018
The PEOPLE, etc., respondent, v. Emilio MARTINEZ, appellant.
Laurette D. Mulry, Riverhead, N.Y. (Edward E. Smith of counsel), for appellant. Timothy Sini, District Attorney, Riverhead, N.Y. (Timothy P. Finnerty of counsel), for respondent.
Laurette D. Mulry, Riverhead, N.Y. (Edward E. Smith of counsel), for appellant.
Timothy Sini, District Attorney, Riverhead, N.Y. (Timothy P. Finnerty of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER Appeals by the defendant from two judgments of the County Court, Suffolk County (Stephen Braslow, J.), both rendered April 30, 2015, convicting him of driving while intoxicated, as a felony, in violation of Vehicle and Traffic Law § 1192(2), driving while intoxicated, as a felony, in violation of Vehicle and Traffic Law § 1192(3), aggravated unlicensed operation of a motor vehicle in the first degree, and violation of Vehicle and Traffic Law § 1128(a) under Indictment No. 254–10, and driving while intoxicated, as a felony, in violation of Vehicle and Traffic Law § 1192(2), driving while intoxicated, as a felony, in violation of Vehicle and Traffic Law § 1192(3), resisting arrest, and violations of Vehicle and Traffic Law §§ 1128(a) and 1227 under Indictment No. 232–15, upon his pleas of guilty, and imposing sentences.
ORDERED that the judgments are affirmed.
Contrary to the People's contention, the defendant's waiver of the right to appeal does not preclude him from making the arguments raised on appeal, as a claim that a plea of guilty was not voluntary survives a valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Broccoli, 152 A.D.3d 536, 54 N.Y.S.3d 875 ; People v. Solis, 111 A.D.3d 654, 655, 974 N.Y.S.2d 132 ; People v. Joseph, 103 A.D.3d 665, 959 N.Y.S.2d 261 ). However, the defendant's contention that his pleas were not knowingly, voluntarily, and intelligently entered because of the chronology in which the County Court conducted the plea allocution is unpreserved for appellate review (see CPL 220.60[3] ; People v. Williams, 27 N.Y.3d 212, 221–222, 32 N.Y.S.3d 17, 51 N.E.3d 528 ; People v. Tyrell, 22 N.Y.3d 359, 363, 981 N.Y.S.2d 336, 4 N.E.3d 346 ) and, in any event, without merit (see generally People v. Sougou, 26 N.Y.3d 1052, 1054–1055, 23 N.Y.S.3d 121, 44 N.E.3d 196 ; People v. Conceicao, 26 N.Y.3d 375, 382–383, 23 N.Y.S.3d 124, 44 N.E.3d 199 ). The defendant's contention that the court erred in accepting his plea because certain statements he made to the court negated elements of certain offenses is also unpreserved for appellate review. Accepting that his remarks triggered the court's duty to conduct a further inquiry to ensure that the defendant's plea was knowingly, voluntarily, and intelligently entered (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ), the plea minutes demonstrate that the court properly conducted such an inquiry at each instance. Having failed to move thereafter to withdraw his plea, the defendant waived any further challenge to the allocution and, thus, his contention is unpreserved for appellate review (see People v. McNair, 13 N.Y.3d 821, 823, 892 N.Y.S.2d 822, 920 N.E.2d 929 ). In any event, the record demonstrates that the defendant's plea was knowingly, voluntarily, and intelligently entered (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Broccoli, 152 A.D.3d at 536, 54 N.Y.S.3d 875).
MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.