PEOPLE v. SWANK

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The PEOPLE of the State of New York, Respondent, v. Kelly A. SWANK, Defendant-Appellant.

Decided: December 30, 2009

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, PINE, AND GORSKI, JJ. Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of Counsel), for Respondent.

Defendant appeals from a judgment convicting her upon her plea of guilty of felony driving while intoxicated (Vehicle and Traffic Law § 1192[2]; § 1193[1][c] [former (i) ] ). Defendant contends that her plea was not voluntarily, knowingly, and intelligently entered because Supreme Court failed to address her prior conviction of driving while intoxicated during the plea colloquy, and thus her conviction should be reduced to a misdemeanor. As defendant correctly concedes, however, she failed to preserve that contention for our review (see generally People v. Jenkins, 37 A.D.3d 1087, 829 N.Y.S.2d 327, lv denied 8 N.Y.3d 946, 836 N.Y.S.2d 557, 868 N.E.2d 240; People v. Gradia, 28 A.D.3d 1206, 812 N.Y.S.2d 922, lv denied 7 N.Y.3d 756, 819 N.Y.S.2d 882, 853 N.E.2d 253). In any event, defendant's contention lacks merit. The indictment charged defendant with two counts of felony driving while intoxicated, and the special information that accompanied the indictment indicated, in compliance with CPL 200.60(1) and (2), that defendant had previously been convicted of driving while intoxicated. We thus conclude on the record before us that defendant was sufficiently apprised of the fact that she was being charged with felonies (see People v. Sanchez, 55 A.D.3d 460, 865 N.Y.S.2d 592, lv denied 11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449; cf. People v. Young, 46 A.D.2d 768, 361 N.Y.S.2d 172), and that she was aware that she was pleading guilty to a felony rather than a misdemeanor (see People v. Genovese, 45 A.D.2d 744, 356 N.Y.S.2d 665). Indeed, the court indicated that defendant's plea was in full satisfaction of the indictment, thereby establishing that the plea “covered the felony DWI charges” (Sanchez, 55 A.D.3d at 460, 865 N.Y.S.2d 592). Contrary to defendant's contention, neither the court nor defendant was required to acknowledge her prior conviction during the plea colloquy. Although CPL 200.60(3) provides that, “[a]fter commencement of the trial and before the close of the [P]eople's case, the court, in the absence of the jury, must arraign the defendant upon such special information, and must advise [the defendant] that he [or she] may admit the previous conviction alleged, deny it or remain mute,” that section “is by its terms inapplicable in the context of a guilty plea” (People v. Dezimm, 193 A.D.2d 976, 598 N.Y.S.2d 124).

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

MEMORANDUM: