PEOPLE v. ADAMS (2022)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is modified on the law by reversing that part convicting defendant of count two of the indictment, vacating defendant's guilty plea to that count and dismissing that count, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of driving while intoxicated as a class E felony (Vehicle and Traffic Law §§ 1192 [3]; 1193 [4] [i]), “refus[ing a] breath test” (§ 1194 [1] [b]), and failure to keep right (§ 1120 [a]). Defendant pleaded guilty in the middle of trial after Supreme Court denied his request for a mistrial stemming from an evidentiary issue that arose during witness testimony.

Subject to an exception that does not apply here (see People v. Rucinski, 24 A.D.3d 1171, 1173, 808 N.Y.S.2d 511 [4th Dept. 2005]; People v. Roe, 191 A.D.2d 844, 845, 595 N.Y.S.2d 121 [3d Dept. 1993]), a conviction for a nonexistent offense constitutes a “fundamental” error that “cannot be waived” (People v. Martinez, 81 N.Y.2d 810, 812, 595 N.Y.S.2d 376, 611 N.E.2d 277 [1992]), need not be preserved (see People v. Gant, 189 A.D.3d 2160, 2161, 134 N.Y.S.3d 901 [4th Dept. 2020], lv denied 36 N.Y.3d 1097, 144 N.Y.S.3d 142, 167 N.E.3d 1277 [2021]), and is not forfeited by a guilty plea (see People v. Bethea, 61 A.D.3d 1016, 1017, 874 N.Y.S.2d 920 [3d Dept. 2009]; Rucinski, 24 A.D.3d at 1173, 808 N.Y.S.2d 511; Roe, 191 A.D.2d at 845, 595 N.Y.S.2d 121). We are obligated to correct such a fundamental error sua sponte despite the parties’ failure to brief the issue (see People v. McCann, 126 A.D.3d 1031, 1034, 4 N.Y.S.3d 697 [3d Dept. 2015], lv denied 25 N.Y.3d 1167, 15 N.Y.S.3d 299, 36 N.E.3d 102 [2015]; Bethea, 61 A.D.3d at 1017, 874 N.Y.S.2d 920). In this case, the purported traffic infraction to which defendant pleaded guilty under count two of the indictment—refusing the breath test mandated by Vehicle and Traffic Law § 1194 (1) (b)—is not a cognizable offense for which a person may be charged or convicted in a criminal court (see People v. Bembry, 199 A.D.3d 1340, 1342, 157 N.Y.S.3d 201 [4th Dept. 2021]; People v. Malfetano, 64 Misc. 3d 135[A], 2019 N.Y. Slip Op. 51147[U], *2, 2019 WL 3220754 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2019]; People v. Villalta, 56 Misc. 3d 59, 60-61, 57 N.Y.S.3d 335 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2017], lv denied 29 N.Y.3d 1135, 64 N.Y.S.3d 685, 86 N.E.3d 577 [2017]; see generally People v. Prescott, 95 N.Y.2d 655, 659, 722 N.Y.S.2d 778, 745 N.E.2d 1000 [2001]; People v. Thomas, 46 N.Y.2d 100, 108, 412 N.Y.S.2d 845, 385 N.E.2d 584 [1978], appeal dismissed 444 U.S. 891, 100 S.Ct. 197, 62 L.Ed.2d 127 [1979]). We therefore modify the judgment accordingly (see e.g. People v. Santiago, 56 Misc. 3d 127[A], 2017 N.Y. Slip Op. 50813[U], *2, 2017 WL 2674039 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2017]; People v. Wrenn, 52 Misc. 3d 141(A], 2016 N.Y. Slip Op. 51193[U], *2, 2016 WL 4275031 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2016], lv denied 28 N.Y.3d 1032, 45 N.Y.S.3d 384, 68 N.E.3d 113 [2016]; People v. Carron, 51 Misc. 3d 135[A], 2016 N.Y. Slip Op. 50555[U], *1, 2016 WL 1532560 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2016]).

As so modified, we affirm the judgment. By pleading guilty, defendant forfeited his challenge to the merits of the court's mistrial ruling (see e.g. People v. Alvarado, 103 A.D.3d 1101, 1101, 958 N.Y.S.2d 554 [4th Dept. 2013], lv denied 21 N.Y.3d 910, 966 N.Y.S.2d 362, 988 N.E.2d 891 [2013]; People v. Robles, 160 A.D.2d 252, 252-253, 553 N.Y.S.2d 360 [1st Dept. 1990], lv denied 76 N.Y.2d 795, 559 N.Y.S.2d 1000, 559 N.E.2d 694 [1990]; People v. Pampalone, 48 Misc. 3d 129[A], 2015 N.Y. Slip Op. 50982[U], *1, 2015 WL 4068390 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2015]; see generally People v. West, 184 A.D.2d 743, 744, 585 N.Y.S.2d 467 [2d Dept. 1992], lv denied 81 N.Y.2d 767, 594 N.Y.S.2d 730, 610 N.E.2d 403 [1992]). Contrary to defendant's related contention, the court's mistrial ruling did not constitute coercion that negated the voluntariness of his subsequent guilty plea (see People v. Lawson, 94 A.D.2d 809, 809-810, 463 N.Y.S.2d 99 [3d Dept. 1983]; People v. Jones, 81 A.D.2d 22, 45-49, 440 N.Y.S.2d 248 [2d Dept. 1981]; see generally Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 [1978]; cf. People v. Grant, 61 A.D.3d 177, 182-184, 873 N.Y.S.2d 355 [2d Dept. 2009]). Contrary to defendant's further contention, “it is well established that [his] monosyllabic ․ responses to questioning by [the court did] not render his plea unknowing and involuntary” (People v. Rathburn, 178 A.D.3d 1421, 1421, 112 N.Y.S.3d 654 [4th Dept. 2019], lv denied 35 N.Y.3d 944, 124 N.Y.S.3d 282, 147 N.E.3d 552 [2020] [internal quotation marks omitted]).

Defendant's remaining contention is academic. Finally, we note that the uniform sentence and commitment form fails to reflect defendant's conviction of and sentence for the traffic infraction of failing to keep right (Vehicle and Traffic Law § 1120 [a]) under count three of the indictment, and the form must be corrected accordingly.

All concur except Troutman, J., who is not participating.