PEOPLE v. BENITEZ (2021)

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in simplified traffic informations with, respectively, aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1] [a]), operating an unregistered motor vehicle (Vehicle and Traffic Law § 401 [1] [a]), unlicensed driving (Vehicle and Traffic Law § 509 [1]) and operating or parking a motor vehicle on a public highway with an expired inspection sticker (Vehicle and Traffic Law § 306). In District Court on January 16, 2020, defendant entered into a plea agreement whereby he pleaded guilty to aggravated unlicensed operation of a motor vehicle in the third degree and the other charges were dismissed. Defendant, who agreed to waive his right to appeal, was sentenced on the same day.

Defendant's appellate contention, that the waiver of appeal was infirm and unenforceable, and that his plea was unknowing, involuntary or unintelligent, “is preserved for appellate review because, having pleaded guilty and [been] sentenced in the same proceeding, defendant had ‘no opportunity to withdraw the plea before imposition of the sentence’ ” (People v Ayala, 55 Misc 3d 150[A], 2017 NY Slip Op 50755[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2017], quoting People v Conceicao, 26 NY3d 375, 382 [2015]). Further, the waiver of appeal, even if entirely valid, cannot bar appellate review of the constitutionality of defendant's plea (see People v Tyrell, 22 NY3d 359, 364 [2013]; People v Louree, 8 NY3d 541, 545 [2007]).

Defendant's sole basis for attacking the knowing, voluntary and intelligent nature of his plea—that the District Court neglected to explain the legal significance of the word “aggravated” in the title of the offense to which he pleaded guilty, aggravated unlicensed operation of a motor vehicle in the third degree—is unavailing. Contrary to his protestations on appeal, we are satisfied that, in admitting his guilt of the charged offense, defendant, who at the time was informed by the court that he still had “eight open suspensions” on his driver's license which he was “required to clear up,” voluntarily and intelligently admitted to operating a motor vehicle while knowing that his privilege to drive in the State of New York was suspended.

Accordingly, the judgment of conviction is affirmed.

RUDERMAN, P.J., GARGUILO and VOUTSINAS, JJ., concur.