Opinion
No. 2018-1047 Q CR
09-23-2022
The People of the State of New York, Respondent, v. Irving Posada, Appellant.
Appellate Advocates (Sean Nuttall of counsel), for appellant. Queens County District Attorney (Johnnette Traill, Sharon Y. Brodt and Josette Simmons McGhee of counsel), for respondent.
Unpublished Opinion
Appellate Advocates (Sean Nuttall of counsel), for appellant.
Queens County District Attorney (Johnnette Traill, Sharon Y. Brodt and Josette Simmons McGhee of counsel), for respondent.
PRESENT:: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, CHEREÉ A. BUGGS, JJ
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Michelle A. Johnson, J.), rendered April 12, 2018. The judgment, insofar as appealed from as limited by the brief, upon convicting defendant, upon his plea of guilty, of reckless endangerment in the second degree, imposed sentence.
ORDERED that the judgment of conviction, insofar as appealed from, is affirmed.
Defendant pleaded guilty to the charged offense of reckless endangerment in the second degree (Penal Law § 120.20) in satisfaction of an accusatory instrument charging him with two counts of driving while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]) and other Vehicle and Traffic Law offenses. In accordance with the terms of the plea agreement, defendant was sentenced, among other things, to pay a $500 fine.
On appeal, defendant's sole contention is that the $500 fine was excessive in that it "was greater than necessary to punish" defendant and because he is indigent.
Defendant had initially raised a second contention as Point I in his brief concerning an alleged denial of his right to a speedy trial. However, defendant moved to withdraw that point, which motion was granted by decision and order on motion of this court dated July 6, 2022.
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 A.D.3d 838 [2010]; People v Ubiles, 59 A.D.3d 572 [2009]; People v Vancol, 69 Misc.3d 133 [A], 2020 NY Slip Op 51223[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; 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 Chunicarchi, 62 Misc.3d 139[A], 2019 NY Slip Op 50054[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] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Defendant's conclusory claim that he is indigent is insufficient, standing alone, to merit the inference that he is unable to pay the fine (see People v Watson, 90 A.D.3d 1666, 1668 [2011] [reduction of fine 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 A.D.2d 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"]; People v Garcia, 59 Misc.3d 134 [A], 2018 NY Slip Op 50492[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; People v Ellsworth, 57 Misc.3d 157 [A], 2017 NY Slip Op 51660[U] [App Term, 2d Dept, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Onyeukwu, 2017 NY Slip Op 51100[U] [there was nothing in the record to indicate that the defendant lacked the resources to pay the fine, despite the appointment of assigned counsel to represent him]; People v Jackson, 49 Misc.3d 134 [A], 2015 NY Slip Op 51464[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; cf. People v Helm, 260 A.D.2d 803, 803 [1999] ["Inasmuch as there is no dispute that defendant is indigent and qualified for assigned counsel, a situation that the People assure us is only possible in Franklin County for persons with incomes at or below the poverty level, we conclude that a reduction in the fine to the minimum permissible amount of $1,000 is appropriate under the circumstances presented here"]).
Here, we find no basis to deviate from the general rule. The fine imposed was well within the permissible statutory range, and defendant has failed to demonstrate the existence of any circumstances warranting a modification of the sentence in the interest of justice (see People v Farrar, 52 N.Y.2d 302 [1981]; People v Vega, 73 A.D.3d 1218 [2010]; People v Suitte, 90 A.D.2d 80 [1982]; Onyeukwu, 2017 NY Slip Op 51100[U]).
Accordingly, the judgment of conviction, insofar as appealed from, is affirmed.
ALIOTTA, P.J., WESTON and BUGGS, JJ., concur.