People v Cook (Courtney)

[*1] People v Cook (Courtney) 2010 NY Slip Op 51070(U) [27 Misc 3d 143(A)] Decided on June 14, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 14, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and LaCAVA, JJ
2009-827 S CR.

The People of the State of New York, Respondent,

against

Courtney A. Cook, Appellant.

Appeal from a judgment of the District Court of Suffolk County, First District (William Ford, J.), rendered April 3, 2009. The judgment convicted defendant, upon her plea of guilty, of operating a motor vehicle without a license.

ORDERED that the judgment of conviction is affirmed.

Defendant, charged with aggravated unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 511 [1] [a]), accepted the People's offer of a plea to the lesser offense of operating a motor vehicle without a license (Vehicle and Traffic Law § 509 [1]) and a sentence of a fine. Defendant appeals from the judgment of conviction, arguing that the plea was not knowingly and intelligently entered owing to a mistake of fact as to her actual guilt of the offense and confusion as to the nature of the offense to which she pleaded. Defendant submits documentation dehors the record which allegedly supports her claims. For the reasons that follow, the judgment of conviction is affirmed.

Defendant's claim that her plea was not knowingly or intelligently made is not preserved for appellate review since she failed to move to withdraw her plea or to vacate the judgment of conviction (People v Johnson, 82 NY2d 683, 685 [1993]; People v Lopez, 71 NY2d 662, 665 [1988]). As there is nothing on the face of the plea that casts doubt upon her guilt, the exception to the preservation rule does not apply (People v Lopez, 71 NY2d at 666; People v Volfson, 69 AD3d 1123, 1124 [2010]).

Defendant's claims are based on assertions of fact and documentation that are dehors the record on appeal and, thus, may not be considered (e.g. People v Moss, 70 AD3d 862 [2010]; People v Miller, 12 AD3d 852, 854 [2004]). Even were we to consider such facts and documentation, we would affirm since they tend to establish that defendant's driver's license was suspended on the day of her arrest and not reinstated until several days later, which belies her [*2]claim of innocence.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: June 14, 2010