People v. Murillo

Dec 16, 2010
Versions:79 A.D.3d 1379
912 N.Y.S.2d 451

consistent with his guilt or cast doubt on the elements of the crime (see People v Campbell, 66 AD3d 1059, 1060 [2009]). His mere failure to precisely articulate one of the crime‘s elements did not trigger County Court‘s duty to make a further inquiry (see People v Lopez, 71 NY2d at 666 n 2). In any event, the colloquy demonstrates that defendant “manifestly understood the charge and made a knowing, voluntary and intelligent decision to plead guilty” (People v Holmes, 75 AD3d 834, 835 [2010]; see People v Goldstein, 12 NY3d 295, 300-301 [2009]).

Defendant further contends that he was deprived of fair notice of the charges against him because the accusatory instrument did not separately charge him with a violation of Vehicle and Traffic Law § 1192 (1). If established, this claim could constitute a jurisdictional defect surviving his failure to preserve the issue (see People v Iannone, 45 NY2d 589, 600 [1978]) as well as his guilty plea and appeal waiver (see People v Dreyden, 15 NY3d 100, 103 [2010]; People v Quinones, 51 AD3d 1226, 1227 [2008], lv denied 10 NY3d 938 [2008]). However, it is well settled that “incorporation by specific reference to [a] statute operates without more to constitute allegations of all the elements of the crime” (People v Place, 50 AD3d 1313, 1314 [2008], lv denied 11 NY3d 740 [2008], quoting People v D‘Angelo, 98 NY2d 733, 735 [2002]). Here, the information alleged that defendant violated Vehicle and Traffic Law § 511 (3) (a) (i) by “knowingly operat[ing] a motor vehicle while under the influence of alcohol in violation of Vehicle and Traffic Law [§] 1192 (1), while his license was . . . revoked.” This was sufficient to provide defendant with fair notice of all of the elements of the charge against him. No jurisdictional defect was established, and neither this claim nor defendant‘s related claim that the failure to charge a separate violation of Vehicle and Traffic Law § 1192 (1) unconstitutionally assumed his guilt was preserved for review (see CPL 210.20; People v Iannone, 45 NY2d at 600).

Defendant further failed to preserve his remaining contentions that the police lacked probable cause to stop and arrest him (see People v Ashley, 45 AD3d 987, 988 [2007], lv denied 10 NY3d 761 [2008]) and the record provides no factual basis for a finding that he was impaired by alcohol (see People v Ward, 282 AD2d 871, 872 [2001]). Review of these claims is precluded by his guilty plea and appeal waiver (see People v Hansen, 95 NY2d 227, 230 [2000]; People v Holmes, 75 AD3d at 834-835).

Peters, J.P., Spain, Lahtinen and Kavanagh, JJ., concur.

Ordered that the judgment is affirmed.

Garry, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered December 15, 2009, convicting defendant upon his plea of guilty of the crime of assault in the second degree.

Defendant, a prison inmate, was charged with assault in the second degree, promoting prison contraband in the first degree and promoting prison contraband in the second degree (two counts). Pursuant to a plea agreement, defendant pleaded guilty to assault in the second degree in full satisfaction of the charges. He was thereafter sentenced as a second felony offender to the agreed-upon term of five years in prison, to be followed by three years of postrelease supervision, with the sentence to be served consecutively to the one he was then serving. Defendant now appeals.

Defendant‘s written waiver of appeal is entirely unsupported by the plea colloquy. There is not even a minimal indication upon the record of proceedings in open court that defendant understood the waiver, that it was a term of his plea agreement, or that he had discussed such waiver with counsel at any point. Thus, the record does not demonstrate that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v McCaskill, 76 AD3d 751, 752 [2010]; People v Riddick, 40 AD3d 1259, 1259-1260 [2007], lv denied 9 NY3d 925 [2007]).

Nonetheless, we disagree with defendant‘s assertion that his sentence is harsh and excessive. County Court imposed the agreed-upon sentence, and we discern no abuse of discretion by the court or extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v Middleton, 72 AD3d 1336, 1337 [2010]; People v Moran, 69 AD3d 1055, 1056 [2010]).

Mercure, J.P., Malone Jr., Kavanagh and Egan Jr., JJ., concur.

Ordered that the judgment is affirmed.