People v GUILIANO (MICHAEL)

[*1] People v GUILIANO (MICHAEL) 2005 NY Slip Op 50061(U) Decided on January 26, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 26, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: January 26, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, J.P., ANGIOLILLO and COVELLO, JJ.
2003-30 W CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

MICHAEL GUILIANO, Appellant.

Appeal by defendant from a judgment of the City Court of Yonkers, Westchester County (M. Martinelli, J., at the plea; R. Liebowitz, J., on the motion; T. Daly, J., at sentencing), rendered August 15, 2002, convicting defendant, upon his guilty plea, of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and imposing sentence.

Judgment of conviction affirmed.

A claim that a guilty plea was improvidently entered, survives a waiver of the right to appeal (People v Seaberg, 74 NY2d 1, 9 [1989]; People v Ballinger, 12 AD3d 686 [2004]; People v Nicholas, 8 AD3d 300 [2004]) and is preserved by a pre-sentencing motion to withdraw the plea (CPL 220.60 [3]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Alexis, 295 AD2d 529 [2002]; People v Reed, 1 Misc 3d 44, 45 [App Term, 2d & 11th Jud Dists 2003]).

In seeking to withdraw a guilty plea, it is defendant's burden (People v Martin, 227 AD2d 416, 417 [1996]) to demonstrate that the court below failed to perform its "constitutional duty" (People v Ford, 86 NY2d 397, 402 [1995]) to ensure that defendant entered the plea with the appropriate understanding of its nature and consequences (People v Harris, 61 NY2d 9, 19 [1983]; see also People v Seaberg, 74 NY2d at 8 [noting the court's "obligation to insure the reasonableness of the bargain struck and of the sentence imposed"]). A court's determination to reject a motion to vacate a plea will not be disturbed absent an "abuse of [that] discretion as a matter of law" (People v Feliciano, 53 NY2d 645, 646 [1981]).

Here, the court properly denied the motion without a hearing (see People v Tinsley, 35 [*2]NY2d 926, 927 [1974]). Defendant's bare protestation of innocence is belied by his admission of sufficient incriminating facts to establish his commission of the offense and by the absence of any facts and circumstances mitigating his culpability for the accident and injuries attendant upon his operation of the motor vehicle (People v Lesesne, 173 AD2d 407 [1991]; People v Gardner, 150 AD2d 722 [1989]; cf. People v De Jesus, 199 AD2d 529, 531 [1993]). His alleged mistaken reliance on a subsequently-reversed Department of Motor Vehicles (DMV) determination which suspended his license following his refusal to submit to a chemical test of the alcohol content of his blood, amounts to the mere belated realization that the People's case was not as strong as believed, a matter that does not warrant a plea's withdrawal (People v Jones, 44 NY2d 76, 81, cert denied 439 US 846 [1978]; People v Junco, 184 AD2d 529 [1992]; People v Lesesne, 173 AD2d 407, supra). We note that notwithstanding any adverse DMV administrative determination, defendant remained entitled, if he so elected, to challenge the admissibility of proof of his refusal to submit to chemical testing via a pre-trial motion to preclude (Vehicle and Traffic Law § 1194 [2] [f]; e.g. People v O'Rama, 78 NY2d 270, 280 [1991]; see People v Hilton, 266 AD2d 233, 234 [1999], affd 95 NY2d 950 [2000]; People v Fagan, 66 NY2d 815, 816 [1985]; People v Trucchio, 159 Misc 2d 523, 526 [Sup Ct, Queens County 1993]).

Rudolph, J.P., and Covello, J., concur.

Angiolillo, J., taking no part.
Decision Date: January 26, 2005