Opinion
No. 570061/19
05-16-2024
The People of the State of New York, Respondent, v. Gonzalo Chavez, Defendant-Appellant.
Unpublished Opinion
Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Jeffrey M. Zimmerman, J.), rendered September 17, 2018, convicting him, upon a plea of guilty, of driving while impaired by alcohol, and imposing sentence.
PRESENT: Brigantti, J.P., James, Perez, JJ.
PER CURIAM.
Judgment of conviction (Jeffrey M. Zimmerman, J.), rendered September 17, 2018, affirmed.
Defendant's claim that his guilty plea to driving while ability impaired (see Vehicle and Traffic Law § 1192[1]), a traffic infraction, was invalid because, inter alia, he was not informed of the duration of the conditional discharge is unpreserved (see People v Bush, 38 N.Y.3d 66 [2022]; People v Nazarioortiz, 80 Misc.3d 131 [A], 2023 NY Slip Op 51086[U] [App Term, 1st Dept 2023], lv denied 40 N.Y.3d 1081 [2023]), and we decline to review it in the interest of justice. As an alternative holding, we find that the record establishes that the plea was knowing, intelligent and voluntary (see People v Conceicao, 26 N.Y.3d 375 [2015]; People v Sougou, 26 N.Y.3d 1052 [2015]). At the plea colloquy, defendant was informed that he would be sentenced to a "conditional discharge" that "carried with it a couple of conditions," including that he "stay out of trouble and not get arrested for another year" and that he "complete the Impaired Driver's Program." In addition, defendant executed a form acknowledging the "one year" duration of the conditional discharge (see People v Kidd, 105 A.D.3d 1267 [2013], lv denied 21 N.Y.3d 1005 [2013]; People v Kripanidhi, 59 Misc.3d 148[A], 2018 NY Slip Op 50789 [U] [App Term, 1st Dept 2018], lv denied 32 N.Y.3d 938 [2018]; CPL 410.10 [1]).
In any event, even if defendant's plea was defective, his remedy would be to vacate the plea. However, defendant does not request that relief, but instead seeks dismissal of the accusatory instrument, and he expressly asks this Court to affirm his conviction if it does not grant dismissal. Since it cannot be said that no penological purpose would be served by reinstating the information charging, inter alia, aggravated driving while intoxicated (see Vehicle and Traffic Law § 1192[2-a]), a misdemeanor, based upon allegations that defendant operated a motor vehicle while having a.24 blood alcohol content, three times the legal limit, dismissal is not warranted and we therefore affirm on this basis as well (see People v Conceicao, 26 N.Y.3d at 385 n).