PEOPLE v. WINSHIP (2006)

Defendant appeals from a judgment convicting him upon his plea of guilty of felony driving while intoxicated (Vehicle and Traffic Law § 1192[3];  § 1193 [1][c][ii] ) and aggravated unlicensed operation of a motor vehicle in the second degree (§ 511[2][a] ).   We reject defendant's contention that County Court erred in imposing an enhanced sentence.   During the plea colloquy, defendant replied in the affirmative when the court asked if he understood that he would not receive the agreed-upon sentence of 1 to 3 years if he did not comply with two conditions, i.e., that he would not be arrested before sentencing and that he would appear at sentencing.   Because defendant failed to comply with either of those conditions, the court was not bound by the sentencing promise and properly imposed an enhanced sentence (see People v. Zelter [Appeal No. 1], 6 A.D.3d 1103, 775 N.Y.S.2d 633, lv. denied 3 N.Y.3d 683, 784 N.Y.S.2d 22, 817 N.E.2d 840;  People v. Baxter, 302 A.D.2d 950, 951, 757 N.Y.S.2d 915, lv. denied 99 N.Y.2d 652, 760 N.Y.S.2d 116, 790 N.E.2d 290;  People v. Haniff, 220 A.D.2d 449, 632 N.Y.S.2d 20, lv. denied 88 N.Y.2d 848, 644 N.Y.S.2d 694, 667 N.E.2d 344).   Contrary to defendant's further contention, the court imposed a sentence of 2 1/313 to 7 years for felony driving while intoxicated, having corrected itself after misstating that the sentence was 2 1/313 to 4 years.   Finally, to the extent that the further contention of defendant that he was deprived of effective assistance of counsel survives his plea of guilty (see People v. Burke, 256 A.D.2d 1244, 682 N.Y.S.2d 650, lv. denied 93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097), we conclude that his contention lacks merit (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: