People v Mancuso (Christian)

[*1] People v Mancuso (Christian) 2015 NY Slip Op 50820(U) Decided on May 19, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : GARGUILO, J.P., MARANO and CONNOLLY, JJ.
2013-1168 N CR

The People of the State of New York, Respondent,

against

Christian Mancuso, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Andrew M. Engel, J.), rendered June 5, 2013. The judgment convicted defendant, upon his plea of guilty, of aggravated driving while intoxicated per se and speeding.

ORDERED that the judgment of conviction is affirmed and the matter is remitted to the District Court for further proceedings pursuant to CPL 460.50 (5).

Pursuant to defendant's plea of guilty to aggravated driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2-a] [a]) and speeding (Vehicle and Traffic Law § 1180 [d]), the District Court agreed, among other things, to impose a term of incarceration of not more than 20 days. However, the court stated that it would not be bound by the agreed-upon sentence if defendant failed to cooperate with the Department of Probation, failed to appear in court when required to do so, or was charged with a new offense or crime before the scheduled sentencing date. The court indicated that it would then be free to sentence defendant "to the fullest extent of the law" without affording defendant the opportunity to withdraw his guilty plea.

It is undisputed that defendant did not fully cooperate with the Department of Probation and did not appear in court, as required, on May 14, 2013.

Defendant's waiver of his right to appeal does not foreclose appellate review of his contentions that his postplea conduct did not warrant the imposition of an enhanced sentence and that the District Court should have permitted him to withdraw his plea (see People v Patterson, 106 AD3d 757 [2013]; People v Muhammad, 47 AD3d 951, 952 [2008]). Nonetheless, defendant's contentions are without merit, as he admitted that he had violated the conditions of the plea by not fully cooperating with the Department of Probation, and by not appearing in court, as required, on May 14, 2013. Thus, the District Court was entitled to impose an enhanced sentence (see People v Jenkins, 11 NY3d 282, 288 [2008]; People v Figgins, 87 NY2d 840, 841 [1995]; People v Morales, 121 AD3d 919 [2014]; People v Browning, 44 AD3d 1067 [2007]; People v Godfrey, 33 AD3d 623, 624 [2006]; People v Thomas, 2 AD3d 758, 759 [2003]) without affording defendant an opportunity to withdraw his guilty plea.

Appellate review of defendant's claim that his sentence was harsh and excessive would be foreclosed by a valid waiver of his right to appeal, particularly because the District Court informed him that if he violated the conditions of his plea, he could be sentenced to the "fullest extent of the law" (see People v Lococo, 92 NY2d 825, 827 [1998]; People v Long, 117 AD3d 1326, 1327 [2014]; People v Bradshaw, 105 AD3d 758 [2013]; People v Arrington, 94 AD3d 903 [2012]; People v Gonzalez, 93 AD3d 679 [2012]; People v Ricketts, 27 AD3d 488, 489 [2006]; People v White, 3 AD3d 543, 544 [2004]; People v Espino, 279 AD2d 798, 800 [2001]; People v Miles, 268 AD2d 489, 491-492 [2000]). However, in this case, defendant's waiver of the right to appeal was invalid, because the District Court merely characterized an appeal as one of the many rights automatically extinguished upon the entry of a guilty plea. The record does [*2]not indicate that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty, such as the right to remain silent, the right to confront one's accusers and the right to a jury trial (see People v Bradshaw, 18 NY3d 257, 264-267 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Callahan, 80 NY2d 273, 280 [1992]; People v Terry, 122 AD3d 955, 955-956 [2014]; People v Williams, 120 AD3d 721, 722 [2014]; People v Michael, 120 AD3d 713 [2014]; People v Johnson, 113 AD3d 635 [2014]; cf. People v Guyette, 121 AD3d 1430 [2014]; People v Chavis, 117 AD3d 1193, 1193-1194 [2014]). Consequently, defendant's contention that his enhanced sentence was harsh and excessive can be adjudicated on the merits.

We find that the enhanced sentence imposed was neither harsh nor excessive (see People v Aliano, 116 AD3d 874, 875 [2014]; People v Perez, 35 AD3d 1031, 1031-1032 [2006]; People v Espino, 288 AD2d 688, 689 [2001]; People v Suitte, 90 AD2d 80 [1982]).

Accordingly, the judgment of conviction is affirmed.

Garguilo, J.P., Marano and Connolly, JJ., concur.

Decision Date: May 19, 2015