Opinion
No. 112699
03-30-2023
The People of the State of New York, Respondent, v. Adriane M. Atutis, Appellant.
Jane M. Bloom, Monticello, for appellant, and appellant pro se. Michael D. Ferrarese, District Attorney, Norwich (Lauren D. Konsul, New York Prosecutors Training Institute, Albany, of counsel), for respondent.
Calendar Date:February 23, 2023
Jane M. Bloom, Monticello, for appellant, and appellant pro se.
Michael D. Ferrarese, District Attorney, Norwich (Lauren D. Konsul, New York Prosecutors Training Institute, Albany, of counsel), for respondent.
Before: Lynch, J.P., Aarons, Pritzker, Fisher and McShan, JJ.
Fisher, J.
Appeal from a judgment of the County Court of Chenango County (Frank B. Revoir Jr., J.), rendered November 20, 2020, convicting defendant upon his plea of guilty of the crime of driving while intoxicated.
Defendant waived indictment and was charged in a superior court information with driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree. Pursuant to a negotiated disposition, and in full satisfaction of the two charges contained in the superior court information, defendant pleaded guilty to driving while intoxicated and, as part of the plea agreement, he was required to waive the right to appeal. Pursuant to the plea agreement, sentencing was adjourned so that defendant could successfully complete a drug court treatment program that he was already participating in. If defendant were to successfully complete the program, abide by the conditions of that program and not further violate the law prior to sentencing, defendant was to be sentenced to, among other things, five years of probation. Defendant subsequently absconded from his drug court program and from the state, and a July 2020 bench warrant for defendant's arrest was issued by County Court for his failure to comply with the conditions of his release. After denying defendant's pro se motion to withdraw his guilty plea, County Court sentenced defendant to 2 to 6 years in prison. Defendant appeals, principally contending that his plea was involuntary and that the court erred in imposing an enhanced sentence.
Initially, we agree with defendant that the appeal waiver is invalid, considering "County Court's terse and inadequate explanation of the nature of the appeal waiver as well as its failure to ascertain - either during the plea colloquy or [in]... a written waiver - whether defendant understood the ramifications thereof" (People v Dye, 210 A.D.3d 1192, 1193 [3d Dept 2022], lv denied 39 N.Y.3d 1072 [2023]; see People v Rodriguez, 206 A.D.3d 1383, 1384 [3d Dept 2022]; People v Boyd, 206 A.D.3d 1350, 1351 [3d Dept 2022], lv denied 38 N.Y.3d 1149 [2022]). In that regard, "County Court did not inform defendant that the waiver of the right to appeal was separate and distinct from the trial-related rights automatically forfeited by the guilty plea, nor did the court explain the nature of the appellate rights being relinquished and/or the ramifications thereof" (People v Rodriguez, 206 A.D.3d at 1384; see People v Bolster, 210 A.D.3d 1205, 1206 [3d Dept 2022]; People v Boyd, 206 A.D.3d at 1351). Given the invalid appeal waiver, defendant's claim that the sentence imposed is harsh and excessive is not precluded (see People v Davis, 199 A.D.3d 1123, 1124-1125 [3d Dept 2021], lv denied 37 N.Y.3d 1160 [2022]). That said, under the circumstances presented here, including defendant's prior convictions for driving while intoxicated and his demonstrated lack of remorse, we do not find the sentence, which fell within the statutory parameters for a class D felony (see Penal Law § 70.00), to be "unduly harsh or severe" (CPL 470.15 [6] [b]; see People v Golden, 201 A.D.3d 1253, 1254 [3d Dept 2022]; cf. People v Tietje, 171 A.D.3d 1355, 1356 [3d Dept 2019], lv denied 33 N.Y.3d 1109 [2019]).
To the extent that defendant's challenge to his guilty plea was preserved by his unsuccessful pro se written motion to withdraw his plea, it lacks merit. Contrary to defendant's claim, the record reflects that, prior to the plea allocution, he was clearly advised of the terms and conditions of the plea agreement, including the count in the superior court information to which he would be pleading guilty and the specific conditions that he was required to abide by in order to obtain the agreed-upon sentence of five years of probation, and he agreed to those terms unequivocally. A review of the record establishes that defendant, in pleading guilty, made a "knowing, voluntary and intelligent choice among alternative courses of action" (People v Conceicao, 26 N.Y.3d 375, 382 [2015]). "Accordingly, as defendant unequivocally pleaded guilty and admitted the factual allegations of the crime[ ], and because his litany of claims of coercion, fraud, innocence and mistake are unsupported or contradicted by the record, County Court did not abuse its discretion in denying his motion to withdraw his plea" (People v LaPierre, 195 A.D.3d 1301, 1303-1304 [3d Dept 2021]; see People v Haffiz, 19 N.Y.3d 883, 884-885 [2012]; People v Fiumefreddo, 82 N.Y.2d 536, 546-548 [1993]; People v Walker, 173 A.D.3d 1561, 1562 [3d Dept 2019]).
"As for defendant's procedural challenge to the enhanced sentence, the record does not reflect that defendant voiced any objection, requested a hearing or moved to withdraw his plea upon this ground" (People v Davis, 199 A.D.3d at 1125 [citation omitted]). Accordingly, this issue is unpreserved for our review (see People v Jones, 196 A.D.3d 974, 974 [3d Dept 2021]; People v Alexander, 194 A.D.3d at 1263; People v DePalma, 99 A.D.3d 1116, 1117 [3d Dept 2012], lv denied 20 N.Y.3d 1010 [2013]) and nevertheless without merit (see People v Jones, 196 A.D.3d at 974; People v Aloafi, 170 A.D.3d 1379, 1380 [3d Dept 2019]). We further decline defendant's invitation to take corrective action in the interest of justice (compare People v Barnes, 177 A.D.3d 1168, 1169 [3d Dept 2019]). Furthermore, inasmuch as defendant's ineffective assistance of counsel claim is predicated upon matters outside of the record, it is more appropriately addressed in a CPL article 440 motion, "where the basis of the claim may be fully developed" (People v Haffiz, 19 N.Y.3d at 885; see People v West, 210 A.D.3d 1194, 1195 [3d Dept 2022], lv denied ___ N.Y.3d ___ [Feb. 22, 2023]; People v Dye, 210 A.D.3d at 1194). Defendant's remaining claims, including those in his pro se supplemental brief, have been reviewed and found to be without merit.
Lynch, J.P., Aarons, Pritzker and McShan, JJ., concur.
ORDERED that the judgment is affirmed.