PEOPLE v. PRINCIPATO (2021)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered November 26, 2018, convicting him of aggravated unlicensed operation of a motor vehicle in the first degree and driving while intoxicated, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant waived his right to be prosecuted by indictment and agreed to be prosecuted under a superior court information. The defendant entered a plea of guilty to aggravated unlicensed operation of a motor vehicle in the first degree and driving while intoxicated. As a condition of the plea agreement, the defendant waived his right to appeal.

The valid waiver of the right to appeal forecloses appellate review of a challenge to the factual sufficiency of the plea allocution (see People v. Griffin, 167 A.D.3d 934, 934, 88 N.Y.S.3d 348; People v. Hutter, 154 A.D.3d 776, 776, 63 N.Y.S.3d 391; People v. Devodier, 102 A.D.3d 884, 884, 958 N.Y.S.2d 220). The defendant's contention that his plea was not knowing, voluntary, and intelligent due to the purported factual insufficiency of the plea allocution survives a valid appeal waiver (see People v. Griffin, 167 A.D.3d at 934, 88 N.Y.S.3d 348), but is unpreserved for appellate review since he did not move to withdraw his plea on this ground prior to the imposition of sentence (see People v. Williams, 27 N.Y.3d 212, 32 N.Y.S.3d 17, 51 N.E.3d 528; People v. Devodier, 102 A.D.3d at 884, 958 N.Y.S.2d 220). Contrary to the defendant's contention, the exception to the preservation requirement does not apply here, because the defendant's plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Griffin, 167 A.D.3d at 934, 88 N.Y.S.3d 348).

Although he did not seek to withdraw his plea before sentencing, the defendant's challenge to the voluntariness of his plea on the ground that he was misinformed by the County Court as to the maximum sentence he faced if convicted is properly before this Court, since “a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge” (People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 [internal quotation marks omitted]; see People v. Keller, 168 A.D.3d 1098, 1099, 92 N.Y.S.3d 415).

“A guilty plea is voluntary only if it represents an informed choice freely made by defendant among other valid alternatives” (People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782; see People v. Keller, 168 A.D.3d at 1099, 92 N.Y.S.3d 415; People v. Grant, 61 A.D.3d 177, 182, 873 N.Y.S.2d 355). “A court determining the voluntariness of a plea must review the record as a whole and the circumstances of the plea in its totality” (People v. Sougou, 26 N.Y.3d 1052, 1055, 23 N.Y.S.3d 121, 44 N.E.3d 196; see People v. Harris, 61 N.Y.2d 9, 19, 471 N.Y.S.2d 61, 459 N.E.2d 170). Among other factors, the courts evaluate “[t]he seriousness of the crime, the competency, experience and actual participation by counsel, the rationality of the plea bargain, and the pace of the proceedings in the particular criminal court” (People v. Harris, 61 N.Y.2d at 16, 471 N.Y.S.2d 61, 459 N.E.2d 170 [internal quotation marks omitted]). “That the defendant allegedly received inaccurate information regarding his possible sentence exposure is another factor which must be considered by the court, but it is not, in and of itself, dispositive” (People v. Garcia, 92 N.Y.2d 869, 870, 677 N.Y.S.2d 772, 700 N.E.2d 311; see People v. Mack, 140 A.D.3d 791, 792, 31 N.Y.S.3d 212).

At the plea proceeding, the County Court informed the defendant, in effect, that he could be sentenced to consecutive terms of imprisonment on the convictions of aggravated unlicensed operation of a motor vehicle in the first degree, a class E felony, and driving while intoxicated, an unclassified misdemeanor. However, pursuant to Penal Law § 70.35, if the defendant were convicted of both counts, his corresponding sentences would run concurrently by operation of law (see People v. Keller, 168 A.D.3d at 1099-1100, 92 N.Y.S.3d 415). As such, the court incorrectly informed the defendant that he could be sentenced to a term of imprisonment up to 21/313 to 5 years, when in fact, the maximum aggregate sentence was a term of imprisonment of 11/313 to 4 years (see Penal Law § 70.00[2][e]; [3][b]).

Notwithstanding the County Court's misstatement, the circumstances of the plea in its totality establish that it was voluntarily entered (see People v. Garcia, 92 N.Y.2d at 870, 677 N.Y.S.2d 772, 700 N.E.2d 311; People v. Mack, 140 A.D.3d at 792, 31 N.Y.S.3d 212). The record reflects that the defendant agreed to plead guilty before the court made the misstatement in question, the defendant had experience with the criminal justice system, and the plea bargain was advantageous in light of an agreement that the defendant's sentence would run concurrently to an indeterminate sentence the defendant already was serving on a Bronx County felony conviction. Further, there is no indication in the record that the defendant relied upon an incorrect understanding of his sentencing exposure in deciding to plead guilty (cf. People v. Keller, 168 A.D.3d at 1098, 92 N.Y.S.3d 415). On this record, it cannot be said that the defendant's plea of guilty was not knowing, voluntary, and intelligent (see People v. Garcia, 92 N.Y.2d at 870, 677 N.Y.S.2d 772, 700 N.E.2d 311; People v. Mack, 140 A.D.3d at 792, 31 N.Y.S.3d 212).

HINDS-RADIX, J.P., LASALLE, BARROS and CONNOLLY, JJ., concur.