Opinion
668 KA 19-01368
08-26-2021
The PEOPLE of the State of New York, Respondent, v. Eric DEMPSEY, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (TYLER BUGDEN OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (TYLER BUGDEN OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of, inter alia, three counts of aggravated vehicular homicide ( Penal Law § 125.14 [1], [4] ). Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our review of any of defendant's contentions, we nevertheless affirm the judgment.
By pleading guilty, defendant forfeited his contention that County Court erred in refusing to preclude evidence that he willfully refused to submit to a chemical test to determine the alcohol and drug content of his blood (see People v. Sirico , 135 A.D.3d 19, 25-26, 18 N.Y.S.3d 430 [2d Dept. 2015], lv denied 27 N.Y.3d 1075, 38 N.Y.S.3d 845, 60 N.E.3d 1211 [2016] ).
Defendant further contends that the police violated his limited right to counsel, and that the court therefore erred in refusing to suppress the results of the chemical tests of two samples of defendant's blood. Although it survives the guilty plea (see CPL 710.70 [2] ), we reject that contention because "both samples were properly obtained by law enforcement; the first sample was obtained by warrant after it had been collected by medical personnel for medical purposes, and the second sample was drawn from defendant pursuant to a court order" ( People v. Dell , 175 A.D.3d 1037, 1038, 107 N.Y.S.3d 586 [4th Dept. 2019], lv denied 34 N.Y.3d 980, 113 N.Y.S.3d 657, 137 N.E.3d 27 [2019] ).
By failing to move to withdraw the plea or vacate the judgment of conviction, defendant failed to preserve his contention that his guilty plea was not knowing, voluntary, and intelligent based on an alleged Brady /Giglio violation (see People v. Brown , 162 A.D.3d 1568, 1568, 78 N.Y.S.3d 848 [4th Dept. 2018], lv denied 32 N.Y.3d 935, 84 N.Y.S.3d 862, 109 N.E.3d 1162 [2018] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ). To the extent that defendant contends that the court erred in denying his motions to reopen the suppression hearing after the delayed disclosure of impeachment material, that contention is forfeited by the guilty plea (see People v. Weinstock , 129 A.D.3d 1663, 1663-1664, 11 N.Y.S.3d 782 [4th Dept. 2015], lv denied 26 N.Y.3d 1012, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015] ; People v. Fulton , 30 A.D.3d 961, 962, 815 N.Y.S.2d 846 [4th Dept. 2006], lv denied 7 N.Y.3d 789, 821 N.Y.S.2d 818, 854 N.E.2d 1282 [2006] ).
The sentence is not unduly harsh or severe. Finally, we have reviewed defendant's remaining contentions and conclude that they do not warrant modification or reversal of the judgment.