Opinion
2016–46 RI CR
04-06-2018
The PEOPLE of the State of New York, Respondent, v. Victoriano PEREZ, Appellant.
Appellate Advocates (Ronald Zapata of counsel), for appellant. Richmond County District Attorney (Morrie I. Kleinbart of counsel), for respondent.
Appellate Advocates (Ronald Zapata of counsel), for appellant.
Richmond County District Attorney (Morrie I. Kleinbart of counsel), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
Appeal by defendant, as limited by his brief, from a sentence of the Criminal Court of the City of New York, Richmond County (Alan J. Meyer, J.), imposed December 14, 2015, upon his conviction of driving while intoxicated per se, upon his plea of guilty.
ORDERED that the sentence is affirmed.
On July 6, 2015, the People charged defendant, in a felony complaint, with aggravated driving while intoxicated per se with a child ( Vehicle and Traffic Law § 1192 [2–a ] [b] ), driving while intoxicated per se ( Vehicle and Traffic Law § 1192 [2 ] ), common law driving while intoxicated ( Vehicle and Traffic Law § 1192 [3 ] ), driving without a license ( Vehicle and Traffic Law § 509 [1 ] ), and failing to obey a traffic control device ( Vehicle and Traffic Law § 1110 [a] ). The accusatory instrument alleged, among other things, that, at about 2:10 a.m., a police officer, having observed defendant operate his motor vehicle across double yellow lines at the approach to Vanderbilt Avenue and Bay Street in Richmond County, stopped defendant, whereupon defendant, who was unable to produce a driver's license, exhibited bloodshot eyes, "swaying balance," a strong odor of an alcoholic beverage on his breath, a flushed face, and slurred speech. There were three children in the vehicle, all under the age of 15. A chemical test of defendant's blood alcohol content produced a reading of .174 of one per centum by weight.
On October 28, 2015, defendant appeared before the Criminal Court (Alan J. Meyer, J.), whereupon he accepted the People's offer of a guilty plea to driving while intoxicated per se and the dismissal of the remaining charges. Although the sentencing terms were not immediately announced, in the course of the subsequent lengthy plea colloquy, the court clearly stated that the sentencing terms included three years' probation and a $1,000 fine. Defendant stated that he understood and accepted those terms, and was sentenced as promised.
As limited by his brief, defendant contends that, due to his indigence, the $1,000 fine should be reduced to $500, noting that he was represented in the trial court by assigned counsel and incurred additional expenses associated with the proceeding's disposition and the terms of probation. Defendant further contends that the sentence of three years' probation should be reduced to two years' probation in light of his crime-free background and in the absence of a social need for an extended period of probationary supervision.
Defendant was sentenced according to the express terms of a highly favorable negotiated plea and sentencing agreement (see People v. Farrar , 52 NY2d 302, 307 [1981] ["the ‘sentence bargain’ is a legitimate part of the plea bargaining process"] ) which involved the disposition of several charges and a $1,000 fine upon his conviction of a class A misdemeanor. In such circumstances, a defendant will not normally be heard to complain that the sentence is unduly harsh or excessive (see People v. Galvez , 72 AD3d 838, 838 [2010] ["The defendant pleaded guilty with the full understanding that he would receive the sentence actually imposed and, therefore, he has no basis now to complain that the sentence imposed is excessive"]; see also People v. Ubiles , 59 AD3d 572 [2009] ; People v. Kazepis , 101 AD2d 816 [1984] ; People v. Colin , 56 Misc 3d 141[A], 2017 NY Slip Op 51119[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ).
Although this court retains the authority, in the interest of justice, to modify a bargained-for sentence that does not represent an abuse of sentencing discretion (see CPL 470.15 [6 ] [b]; People v. Delgado , 80 NY2d 780, 783 [1992] ; People v. Perez–Vazquez , 55 Misc 3d 135[A], 2017 NY Slip Op 50485[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ), that authority is normally exercised only upon a showing of "mitigating or extraordinary circumstances" ( People v. Vega , 73 AD3d 1218, 1219 [2010] ; see e.g. People v. Jackson , 49 Misc 3d 134[A], 2015 NY Slip Op 51464[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ). The fact that defendant was represented by assigned counsel is insufficient, standing alone, to warrant the inference that he is unable to pay the fine (see e.g. People v. Watson , 90 AD3d 1666, 1668 [2011] [reduction denied because the record failed to establish that the defendant lacked "the resources to pay ... the fine, despite the appointment of assigned counsel to represent him"]; People v. Gallacher , 278 AD2d 935, 936 [2000] ["Although the fine is the maximum amount allowed by law, there is no evidence that defendant is unable to pay the fine"]; see also People v. Ellsworth , 57 Misc 3d 157[A], 2017 NY Slip Op 51660[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; People v. Onyeukwu , 56 Misc 3d 140[A], 2017 NY Slip Op 51100[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; cf. People v. Helm , 260 AD2d 803, 803 [1999] ), and the record does not otherwise establish sufficient grounds to merit the relief sought.
With respect to the period of probation, the terms thereof include various forms of alcohol counseling and behavior monitoring which should not be abbreviated given the aggravating factors that defendant operated his vehicle in the early morning hours, with a blood alcohol content of .17, that is, twice the threshold amount for driving while intoxicated per se, and that he exposed three children below the age of 15 to the risk of serious injury. His avoidance of a possible felony conviction and the reduction of his penal liability to a single charge and without any period of incarceration, renders the three-year term of probation a leniency.
This determination is without prejudice to defendant moving in the Criminal Court, if he be so advised, for relief from the conditions of probation (see CPL 410.20 [1 ] ) or the fine (see CPL 420.10 [5 ]; e.g. People v. Toledo , 101 AD3d 571 [2012] ; People v. Perez , 56 Misc 3d 126[A], 2017 NY Slip Op 50795[U] [App Term, 1st Dept 2017] ; People v. Ricchiuti , 55 Misc 3d 148[A], 2017 NY Slip Op 50712[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2017] ).
Accordingly, the sentence is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.