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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Ronald C. MAHY, Appellant.

Decided: May 22, 2003

Before:  CARDONA, P.J., MERCURE, PETERS, CARPINELLO and ROSE, JJ. Jay L. Wilber, Public Defender, Binghamton (Michael A. Vargha of counsel), for appellant. Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.

Appeal from judgment of the County Court of Broome County (Smith, J.), rendered March 26, 2001, convicting defendant upon his plea of guilty of the crimes of vehicular assault in the first degree, assault in the second degree, aggravated unlicensed operation of a motor vehicle in the first degree, operating a motor vehicle while under the influence of alcohol (two counts) and leaving the scene of an accident without reporting.

As the result of a motor vehicle accident which caused serous physical injury, defendant was indicted on six counts including vehicular assault in the first degree (see Penal Law § 120.04) and assault in the second degree (see Penal Law § 120.05).   The People proposed a sentence of one year of incarceration on a plea of guilty of vehicular assault in the first degree in exchange for dismissal of the balance of the indictment.   When County Court indicated a willingness to sentence defendant to a maximum of six months of incarceration followed by five years of probation, defendant pleaded guilty to the entire indictment to avoid negotiating with the People.   Defendant then sought to obtain the benefit of the bargain that the People had offered by moving for dismissal of all counts except the one charging vehicular assault in the first degree.   County Court denied the motion, and subsequently sentenced defendant as promised.

 On his appeal, defendant initially contends that his conviction of assault in the second degree (see Penal Law § 120.05) should be reversed and the charge dismissed because he also pleaded guilty to vehicular assault in the first degree (see Penal Law § 120.04), a more specific statute that he argues should be deemed the exclusive means of punishing his conduct.   We disagree.   In the absence of a legislative mandate directing the People to try such cases solely under Penal Law § 120.04, “the choice of statute under which to proceed rests within the discretion of the prosecutor” (People v. Mauceri, 118 A.D.2d 735, 736, 500 N.Y.S.2d 69 [1986], lv. denied 67 N.Y.2d 1054, 504 N.Y.S.2d 1030, 495 N.E.2d 363 [1986];  see People v. Duffy, 79 N.Y.2d 611, 614, 584 N.Y.S.2d 739, 595 N.E.2d 814 [1992];  People v. Valenza, 60 N.Y.2d 363, 371, 469 N.Y.S.2d 642, 457 N.E.2d 748 [1983];  People v. Eboli, 34 N.Y.2d 281, 287, 357 N.Y.S.2d 435, 313 N.E.2d 746 [1974] ).

 Nor can we agree that defendant's equal protection rights were violated by County Court's denial of his motion to dismiss the inclusory concurrent counts.   While it is true that defendants who plead guilty are effectively treated differently than those who are convicted after trial when a guilty verdict of “the greatest count submitted is deemed a dismissal of every lesser count submitted” (CPL 300.40[3][b] ), there is a rational basis to support this statutory distinction (see People v. Whidden, 51 N.Y.2d 457, 460, 434 N.Y.S.2d 936, 415 N.E.2d 927 [1980], appeal dismissed 454 U.S. 803, 102 S.Ct. 75, 70 L.Ed.2d 72 [1981] ).   The Court of Appeals has held that the inapplicability of CPL 300.40(3)(b) to convictions upon guilty pleas “prevents a defendant, having voluntarily pleaded guilty, from avoiding all criminal sanction by obtaining on appeal a reversal of his conviction on a single count of the indictment” (People v. Walton, 41 N.Y.2d 880, 881, 393 N.Y.S.2d 979, 362 N.E.2d 610 [1977] ).

 Finally, defendant had no right to plead guilty except to the entire indictment (see People v. Miller, 126 A.D.2d 868, 869, 511 N.Y.S.2d 160 [1987], lv. denied 69 N.Y.2d 884, 515 N.Y.S.2d 1032, 507 N.E.2d 1102 [1987] ), he voluntarily exercised that right and, in exchange, he received a more favorable sentence from County Court than the prosecution was offering in a proposed plea agreement.   Thus, his claim of a deprivation of due process is also unpersuasive.

ORDERED that the judgment is affirmed.



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