PEOPLE v. KHAN (2002)

 Defendant appeals from a judgment convicting him upon his plea of guilty of driving while ability impaired (DWAI) (Vehicle and Traffic Law § 1192 [1] ) and aggravated unlicensed operation of a motor vehicle (AUO) in the first degree (Vehicle and Traffic Law § 511[3] ).   We agree with defendant that his purported waiver of the right to appeal is ineffective.  “Although defendant signed a waiver of the right to appeal, the plea colloquy does not contain any reference to defendant's waiving that right, and thus we cannot conclude that the waiver was knowing and voluntary” (People v. McGee, 241 A.D.2d 972, 661 N.Y.S.2d 393, lv. denied 90 N.Y.2d 941, 664 N.Y.S.2d 760, 687 N.E.2d 657;  see, People v. DeSimone, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108).

 We reject the contention of defendant that his conviction of both DWAI and AUO in the first degree violates the constitutional prohibition against double jeopardy.   Although in this case commission of DWAI is an element of AUO in the first degree and therefore does not “require[ ] proof of an additional fact which [AUO in the first degree] does not” (Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306;  see, People v. Wood, 95 N.Y.2d 509, 513, 719 N.Y.S.2d 639, 742 N.E.2d 114), here both charges are contained within a single indictment and were disposed of by a single plea, and Penal Law § 70.25(2) requires that the sentences upon conviction of both counts be concurrent.   Double jeopardy therefore is not implicated (see, People v. Mabry, 151 A.D.2d 507, 508, 542 N.Y.S.2d 297, lv. denied 74 N.Y.2d 813, 546 N.Y.S.2d 571, 545 N.E.2d 885).   Further, defendant's contention that Vehicle and Traffic Law § 1192(1) is unconstitutional is without merit (see, People v. Cruz, 48 N.Y.2d 419, 423-427, 423 N.Y.S.2d 625, 399 N.E.2d 513, appeal dismissed 446 U.S. 901, 100 S.Ct. 1825, 64 L.Ed.2d 254).

 By pleading guilty, defendant forfeited his present contentions that the underlying local criminal court accusatory instrument and indictment contain technical defects (see, People v. Cox, 275 A.D.2d 924, 925, 713 N.Y.S.2d 708, lv. denied 95 N.Y.2d 962, 722 N.Y.S.2d 479, 745 N.E.2d 399;  People v. Gerber, 182 A.D.2d 252, 260-261, 589 N.Y.S.2d 171, lv. denied 80 N.Y.2d 1026, 592 N.Y.S.2d 676, 607 N.E.2d 823), that the CPL 710.30 notice was defective (see, People v. Taylor, 65 N.Y.2d 1, 3, 489 N.Y.S.2d 152, 478 N.E.2d 755), and that he was denied effective assistance of counsel by the failure of defense counsel to seek suppression of his statements to the arresting officer (see, People v. Bender, 270 A.D.2d 924, 706 N.Y.S.2d 653, lv. denied 95 N.Y.2d 832, 713 N.Y.S.2d 138, 735 N.E.2d 418).   The further contention of defendant that the prosecutor failed to file the special information required by CPL 200.60(2) in a timely manner was waived by his guilty plea (see, People v. Mooney, 245 A.D.2d 1137, 666 N.Y.S.2d 532, lv. denied 91 N.Y.2d 928, 670 N.Y.S.2d 410, 693 N.E.2d 757).   Further, by failing to move to suppress his statements to the arresting officer, defendant waived his right to judicial determination of his present contention that such statements are the product of an unlawful arrest (see, CPL 710.70 [3] ).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: