Opinion
No. 1173 Ind No. 2472/17 Case No. 2018-5074
12-07-2023
The People of the State of New York, Respondent, v. Wilfredo Pagan, Defendant-Appellant.
Twyla Carter, The Legal Aid Society, New York (Paris C. DeYoung of counsel), for appellants. Alvin L. Bragg, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Paris C. DeYoung of counsel), for appellants.
Alvin L. Bragg, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.
Before: Webber, J.P., Scarpulla, Pitt-Burke, Rosado, O'Neill Levy, JJ.
Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J., at plea; Ann E. Scherzer, J., at sentencing), rendered August 3, 2018, convicting defendant, upon his plea of guilty, of aggravated unlicensed operation of a motor vehicle in the second degree and aggravated unlicensed operation of a motor vehicle in the third degree, and sentencing him to concurrent terms of two years' probation and a $500 fine on each count, unanimously affirmed.
Defendant made a valid waiver of his right to appeal (see generally People v Thomas, 34 N.Y.3d 545 [2019], cert denied 589 U.S. __, 140 S.Ct. 2634 [2020]). The combination of the court's oral colloquy with defendant and the detailed written waiver that he signed after consultation with counsel satisfied the requirements of a valid waiver. The waiver forecloses review of defendant's claim that the Driver's License Suspension Reform Act (DLSRA), which amended Vehicle and Traffic Law § 510(4-a) to remove the failure to pay a fine as a basis for the suspension of a driver's license, is retroactive (see People v Merchant, 209 A.D.3d 453 [1st Dept 2022], lv denied 39 N.Y.3d 987 [2022] [defendant's waiver of his right to appeal precluded challenge to sentence, premised on his application for retroactive relief under the Rockefeller Drug Law Reform Act]; People v Lara-Medina, 195 A.D.3d 542 [1st Dept 2021], lv denied 37 N.Y.3d 993 [2021]) [valid appeal waiver foreclosed review of defendant's claim that amendment to speedy trial statute should be applied retroactively to him]).
Regardless of whether defendant made a valid waiver of his right to appeal, nothing in the language of the DLSRA suggests that the Legislature intended that it apply retroactively (see Majewski v Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 584 [1998]). Thus, the DLSRA, enacted after defendant was convicted, does not mandate reversal of the convictions (see People v Urena, 80 Misc.3d 129 [A] [App Term, 1st Dept 2023]; People v Onwuanaibe, 76 Misc.3d 132 [A] [App Term, 2d Dept, 2d, 11th, & 13th Jud Dists 2022], lv denied 39 N.Y.3d 964 [2022]). In any event, even if the statute were retroactive, it would not have warranted vacatur of the convictions, in light of those license suspensions that did not result from nonpayment of fines.
Defendant's challenge to the validity of his plea to the charge of second-degree aggravated unlicensed operation of a motor vehicle is unpreserved (see People v Lopez, 71 N.Y.2d 662, 665-666 [1988]), and we decline to address it in the interest of justice. As an alternative holding, we reject it on the merits. Defendant entered into a plea agreement pursuant to which he agreed to plead guilty to first-, second- and third-degree aggravated unlicensed operation of a motor vehicle in exchange for a promise that the first-degree felony conviction would be vacated, and sentence imposed only on the second- and third-degree misdemeanor counts, if defendant completed six days of community service and remained arrest-free for a year, conditions that defendant met. Defendant contends that the second-degree conviction must be vacated because, although the court conducted a proper factual allocution on the first- and third- degree counts, it did not elicit a factual basis for the second-degree count. However, no factual basis for the second-degree count was required under the circumstances here, where defendant bargained for a plea to a lesser crime and understood the nature of all the charges against him (see People v Johnson, 23 N.Y.3d 973, 975 [2014]; People v Goldstein, 12 N.Y.3d 295, 301 [2009]), notwithstanding the fact that the second-degree count was not a lesser included offense of the top charge (see People v Utsler, 63 Misc.3d 154 [A] [App Term, 1st Dept 2019], lv denied 33 N.Y.3d 1109 [2019]). The record as a whole indicates that defendant's plea was entered into knowingly, voluntarily, and intelligently (see People v Conceicao, 26 N.Y.3d 375, 383 [2015]).
Defendant's waiver of appeal forecloses his excessive sentence claim (see People v Gonzalez, 178 A.D.3d 440 [1st Dept 2019], lv denied 35 N.Y.3d 941 [2020]). In any event, we perceive no basis for reducing the sentence.