People v Idrovo (Edgar)
Annotate this CaseDecided on December 30, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., BERNICE D. SIEGAL, WAVNY TOUSSAINT, JJ
2018-150 Q CR
The People of the State of New York, Respondent,
against
Edgar Idrovo, Appellant.
Feldman and Feldman (Steven A. Feldman of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill and Danielle M. O'Boyle of counsel), for respondent.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Michelle A. Johnson, J.), rendered December 7, 2017. The judgment convicted defendant, upon his plea of guilty, of common-law driving while intoxicated under Criminal Court docket No. CR-043158-17QN, and imposed sentence.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in an information with common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511 [2] [a] [iv]), driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), and unlicensed operation of a motor (Vehicle and Traffic Law § 509 [1]). When defendant appeared with counsel for arraignment under this docket (Criminal Court docket No. CR-043158-17QN), defendant had two other open Queens County cases. On November 17, 2017, the People offered a plea to driving while ability impaired (Vehicle and Traffic Law § 1192 [1]) with 15 days' jail on an old driving while intoxicated (DWI) case, contingent on defendant also accepting a plea to common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) with six months' jail on defendant's instant DWI case under docket No. CR-043158-17QN, and a plea to bail jumping in the third degree (Penal Law § 215.55) with nine months' jail on another open case. The matter was adjourned at defense counsel's request.
On December 7, 2017, defendant appeared with counsel before the Criminal Court (Michelle A. Johnson, J.) on the three open cases. The People made the same three offers from the prior court date and a disposition was reached. Insofar as is relevant to this appeal, which, as limited by the notice of appeal, concerns only the judgment of conviction under docket No. CR-0[*2]43158-17QN, defendant pleaded guilty to the common-law driving while intoxicated charge. Defense counsel asked the Criminal Court for time to pay the mandatory surcharges and fees, and the Criminal Court granted this request, deferring payment for four months.
On appeal, defendant contends that his guilty plea was not knowingly, voluntarily, and intelligently entered because the plea transcript is devoid of any evidence that he understood the charges against him and the plea allocution fails to recite any elements of the crime, and does not contain any specific admission to the crime. Generally, a defendant must move to withdraw his guilty plea or vacate the judgment of conviction to preserve a claim that the plea is invalid (see People v Conceicao, 26 NY3d 375, 381 [2015]). However, a narrow exception exists "where the particular circumstances of a case reveal that a defendant had no actual or practical ability to object to an alleged error in the taking of a plea that was clear from the face of the record" (id.; People v Louree, 8 NY3d 541, 546 [2007]). Here, defendant's claim is reviewable on direct appeal, despite the fact that he did not move to withdraw his plea or vacate the judgment of conviction, as he faced a practical inability to move to withdraw the plea because he was sentenced on the same date as the plea proceeding (see People v Sougou, 26 NY3d 1052, 1054 [2015]; People v Conceicao, 26 NY3d at 382; People v Reinhardt, 58 Misc 3d 151[A], 2018 NY Slip Op 50111[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).
However, defendant's claim lacks merit. A plea allocution based on a negotiated plea does not require that a defendant make a specific admission as to each element of the charged offense (see People v Goldstein, 12 NY3d 295, 301 [2009]). A guilty plea will be upheld so long as the record as a whole affirmatively discloses that a defendant who pleaded guilty entered his plea "voluntarily, knowingly and intelligently" (People v Haffiz, 19 NY3d 883, 884 [2012] [internal quotation marks omitted]). Here, the Criminal Court specifically advised defendant that he was agreeing to plead guilty to driving while intoxicated under docket No. CR-043158-17QN (cf. People v White, 26 Misc 3d 144[A], 2010 NY Slip Op 50440[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]), explained that this conviction would add to defendant's criminal history, and informed defendant of the constitutional rights he was waiving by pleading guilty, as well as the potential deportation and immigration consequences. Thereafter, the Criminal Court asked defendant if he still wished to plead guilty and whether he was pleading guilty because he was, in fact, guilty as described, and defendant responded in the affirmative. Thus, the plea record taken as a whole and read in context demonstrates that defendant knowingly, intelligently, and voluntarily entered a guilty plea to common-law driving while intoxicated, after being fully apprised of the rights he was waiving.
By expressly asking the Criminal Court to allow time for defendant to pay the mandatory surcharge, defendant waived the claim he now raises on appeal pertaining to the mandatory surcharge (see People v Tietje, 171 AD3d 1221 [2019]; People v Rodriguez, 162 AD3d 513 [2018]; People v Sadiku, 63 Misc 3d 162[A], 2019 NY Slip Op 50917[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Moreover, any error was in defendant's favor, and, thus, does not entitle him to the relief he seeks (see People v Himonitis, 174 AD3d 738 [2019]; People v Tietje, 171 AD3d 1221; People v Rodriguez, 162 AD3d 513; People v Fisher, 66 Misc 3d 140[A], 2020 NY Slip Op 50142[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]).
Accordingly, the judgment of conviction is affirmed.
ALIOTTA, P.J., SIEGAL and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 30, 2020
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