Opinion
2011-10-20
The PEOPLE of the State of New York, Respondent,v.Charles L. CASSARA, Appellant.
Matthew J. Leonardo, Albany, for appellant.Louise K. Sira, District Attorney, Johnstown (Chad W. Brown of counsel), for respondent.Before: MERCURE, J.P., SPAIN, MALONE JR., KAVANAGH and McCARTHY, JJ.
SPAIN, J.
Appeal from a judgment of the County Court of Fulton County (Giardino, J.), rendered September 2, 2010, convicting defendant upon his plea of guilty of the crime of driving while intoxicated.
Defendant pleaded guilty to one count of driving while intoxicated (hereinafter DWI) as a class E felony ( see Vehicle and Traffic Law § 1192 [2]; § 1193[1][c][i] ) in satisfaction of an indictment charging him with two counts of DWI, and waived his right to appeal. The charges followed defendant's arrest near the scene of a vehicular accident in the City of Gloversville, Fulton County, and a toxicology test revealing that defendant had a blood alcohol content of .17%. Defendant had a prior DWI conviction within the previous 10 years. In accordance with the plea agreement, County Court sentenced defendant to 1 to 3 years of imprisonment—the minimum permissible sentence ( see Penal Law § 70.00[2], [ 3][b] )—with a consecutive sentence
Defendant's criminal record includes four felony and seven misdemeanor convictions.
of three years of conditional discharge. Defendant now appeals.
We affirm. Defendant's sole assertion on appeal is that trial counsel was ineffective, specifically in failing to request a pretrial probable cause hearing challenging his arrest or a hearing seeking to suppress his statement to the arresting officer that he had consumed a “few” glasses of wine. Defendant, however, failed to move to withdraw his plea or vacate the judgment of conviction, rendering the issue unpreserved for our review ( see People v. Wicks, 83 A.D.3d 1223, 1224, 920 N.Y.S.2d 488 [2011]; People v. De Berardinis, 304 A.D.2d 914, 915, 757 N.Y.S.2d 641 [2003], lv. denied 100 N.Y.2d 580, 764 N.Y.S.2d 390, 796 N.E.2d 482 [2003] ). Further, this contention survives defendant's valid waiver of the right to appeal only to the extent that counsel's alleged ineffectiveness impacted the voluntariness of his plea ( see People v. Belle, 74 A.D.3d 1477, 1480, 902 N.Y.S.2d 258 [2010], lv. denied 15 N.Y.3d 918, 913 N.Y.S.2d 645, 939 N.E.2d 811 [2010]; People v. Stokely, 49 A.D.3d 966, 968, 853 N.Y.S.2d 221 [2008] ).
As the record demonstrates that defendant was fully apprised of the rights he was giving up by pleading guilty, including all of his constitutional rights to present a defense, no basis exists to find that defense counsel's decision not to request a Dunaway or Huntley hearing had any impact upon the knowing and voluntary nature of his plea ( see People v. Parilla, 8 N.Y.3d 654, 659, 838 N.Y.S.2d 824, 870 N.E.2d 142 [2007]; People v. De Berardinis, 304 A.D.2d at 915, 757 N.Y.S.2d 641; People v. Clifford, 295 A.D.2d 697, 698, 743 N.Y.S.2d 319 [2002], lv. denied 98 N.Y.2d 709, 749 N.Y.S.2d 6, 778 N.E.2d 557 [2002] ). Further, defendant's appearance, impaired motor skills, slurred speech, positive breath screening test and inability to pass multiple field sobriety tests suggest that a Dunaway hearing would have been futile ( see People v. Kowalski, 291 A.D.2d 669, 670, 738 N.Y.S.2d 427 [2002] ). Given the results of the toxicology test, it is highly unlikely that a Huntley hearing, even if successful, would have significantly altered defendant's perception of his chances at an acquittal were he to proceed to trial. Accordingly, we hold that defendant's contentions are barred by his waiver of the right to appeal ( see People v. Santos–Rivera, 86 A.D.3d 790, 791, 927 N.Y.S.2d 236 [2011]; People v. Gentry, 73 A.D.3d 1383, 1384, 901 N.Y.S.2d 429 [2010]; People v. Leigh, 71 A.D.3d 1288, 1288, 897 N.Y.S.2d 744 [2010], lv. denied 15 N.Y.3d 775, 907 N.Y.S.2d 464, 933 N.E.2d 1057 [2010]; People v. Clark, 52 A.D.3d 951, 952, 860 N.Y.S.2d 659 [2008], lv. denied 11 N.Y.3d 831, 868 N.Y.S.2d 605, 897 N.E.2d 1089 [2008]; People v. McDuffie, 43 A.D.3d 559, 560, 840 N.Y.S.2d 253 [2007], lv. denied 9 N.Y.3d 992, 848 N.Y.S.2d 609, 878 N.E.2d 1025 [2007] ).
ORDERED that the judgment is affirmed.
MERCURE, J.P., MALONE JR., KAVANAGH and McCARTHY, JJ., concur.