Opinion
2019-949 N CR
05-27-2021
The People of the State of New York, Respondent, v. Hiendy Henriquez, Appellant.
Andrew E. MacAskill, for appellant. Nassau County District Attorney (Cristin N. Connell and Madeline Collins of counsel), for respondent.
Unpublished Opinion
Andrew E. MacAskill, for appellant.
Nassau County District Attorney (Cristin N. Connell and Madeline Collins of counsel), for respondent.
ELIZABETH H. EMERSON, J.P., JERRY GARGUILO, HELEN VOUTSINAS, JJ
Appeal from a judgment of the District Court of Nassau County, First District (Howard T. Code, J.), rendered May 30, 2019. The judgment convicted defendant, upon her plea of guilty, of aggravated unlicensed operation of a motor vehicle in the second degree, and imposed sentence.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in an accusatory instrument with operating a motor vehicle without an interlock device (Vehicle and Traffic Law § 1198 [7] [a]), criminal possession of marihuana in the fifth degree (Penal Law § 221.10 [1]) and two counts of aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511 [2] [a] [ii], [iv]).
According to the accusatory instrument, the deponent police officer "observed [] defendant... seated in the driver's seat of a [parked] white 2013 Audi... with the key in the ignition," along with a separately charged other who was seated in the front passenger seat. As he approached, the officer saw "white smoke in the vehicle" and detected the "odor of marijuana emanating from the vehicle's open windows.... [D]efendant turn[ed] the key in the ignition to the off position, pull[ed] it out of the ignition and through [sic] it on the driver's side floorboard." The officer also "observed a clear plastic bag containing a greenish brown vegetation [sic] believed to be marijuana in plain view on the passenger side floorboard of the vehicle and a burning brown paper cigarette containing a greenish brown vegetation [sic] believed to be marijuana in the center console ash tray." It was further alleged in the accusatory instrument that defendant told the officer that her "license is bad; I don't have one"; "It's just weed Officer; we were just smoking"; and "I drove the car here to hide it from the bank." Also according to the accusatory instrument, the officer learned, from a computer check of the New York State Department of Motor Vehicles (DMV), that defendant "has a revoked license with 11 suspensions, 7 on 7 dates and she has an interlock device restriction on her license."
On April 17, 2019, according to the terms of a negotiated plea agreement that included a waiver of the right to appeal, defendant pleaded guilty to aggravated unlicensed operation of a motor vehicle in the second degree in satisfaction of the docket. She was sentenced immediately after her plea was accepted by the District Court.
Preliminarily, the guilty plea in this case does "not forfeit [] defendant's right to challenge the facial sufficiency of the accusatory instrument, i.e., to argue that it is jurisdictionally defective, even if raised for the first time on appeal" (People v Mason, 62 Misc.3d 75, 77 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see People v Konieczny, 2 N.Y.3d 569, 573 [2004]; People v Taylor, 65 N.Y.2d 1, 5 [1985]; People v Case, 42 N.Y.2d 98 [1977]). Moreover, a valid waiver of appeal does not bar an appellate court from considering a defendant's facial insufficiency claim, as a "valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (People v Smalls, 26 N.Y.3d 1064, 1066 [2015] [internal quotation marks omitted]).
As defendant did not waive her right to be prosecuted by information, the facial sufficiency of the instrument must be evaluated under the standards applicable to an information (see CPL 100.10 [1]; 100.15, 100.40 [1]; 170.65 [1], [3]; People v Kalin, 12 N.Y.3d 225, 228 [2009]; People v Moore, 48 Misc.3d 143 [A], 2015 NY Slip Op 51337[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Ocasio, 28 N.Y.3d 178, 180 [2016] [internal quotation marks omitted]).
The charge to which defendant pleaded guilty is facially sufficient. Defendant's purported admissions to the deponent police officer that her "license is bad; I don't have one" and that she "drove the car here to hide it from the bank," satisfy, respectively, the "unlicensed" and "operation" elements of the pleaded-to charge of aggravated unlicensed operation of a motor vehicle in the second degree (see People v Suber, 19 N.Y.3d 247, 254 [2012]). Although the DMV information cited in the accusatory instrument is hearsay, defendant's guilty plea constituted a waiver on appeal of any hearsay defect claims, which are not jurisdictional (see People v Keizer, 100 N.Y.2d 114, 123 [2003]). Also, from defendant's admissions, it is reasonable to infer that she had driven upon a public highway, which encompasses "[a]ny highway, road, street, avenue, alley, public place, public driveway or any other public way" (Vehicle and Traffic Law § 134).
Defendant's appeal waiver is infirm. The court "failed to advise... defendant that [s]he would ordinarily retain the right to appeal even after pleading guilty, but that in this case [s]he was being asked to voluntarily relinquish that right as a condition of the plea agreement" (People v Mojica, 178 A.D.3d 856, 856-857 [2019]; see People v Thomas, 34 N.Y.3d 545, 557-563 [2019] [discussing the history of New York jurisprudence concerning waivers of appeal in criminal cases, and affirming the already-established preconditions to enforceability of such a wavier]). As such, "the record does not demonstrate that... defendant understood the nature of the right [s]he was being asked to waive or the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty" (People v Harris, 175 A.D.3d 1555, 1557 [2019]). Consequently, there exists no procedural impediment to this court reviewing defendant's final contention on appeal, namely, that her plea was not knowing, voluntary and intelligent. This argument, however, is without merit.
Prior to entering into the plea, defendant was advised by defense counsel about the possible collateral consequences of a guilty plea. Defense counsel was with defendant throughout the plea colloquy. The court explained to defendant, with examples, her rights pursuant to Boykin v Alabama (395 U.S. 238 [1969]) that she would be waiving with her plea. Therefore, "in view of the whole colloquy," the District Court's questioning of defendant was adequate, at a minimum, to ensure that the plea was voluntary, knowing and intelligent, "particularly given this defendant's background, including [her] extensive experience with the criminal justice system and multiple prior guilty pleas" (People v Sanders, 25 N.Y.3d 337, 342 [2015]).
Accordingly, the judgment of conviction is affirmed.
EMERSON, J.P., GARGUILO and VOUTSINAS, JJ., concur.