State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 30, 2015 106104
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
GREGORY CARR,
Appellant.
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Calendar Date: March 23, 2015
Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.
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Albert F. Lawrence, Greenfield Center, for appellant.
Mary E. Rain, District Attorney, Canton (Patricia C.
Campbell, Syracuse, of counsel), for respondent.
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Clark, J.
Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered May 14, 2013, convicting
defendant upon his plea of guilty of the crime of driving while
intoxicated.
Pursuant to a plea agreement, defendant waived indictment
and entered a guilty plea to a superior court instrument charge
of driving while intoxicated, a class E felony based upon his
prior conviction for driving while intoxicated (see Vehicle and
Traffic Law §§ 1192 [3]; 1193 [1] [c]), and waived his right to
appeal. County Court indicated that it intended to follow the
sentencing recommendation of the Probation Department but agreed
that, if defendant abided by the terms of his release – including
successfully completing substance abuse treatment, continuing to
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test negative for prohibited substances, and refraining from
consuming alcohol or illegal substances – no prison time would be
imposed. Defendant was released on supervision in order to
complete treatment, but that release was later revoked after
defendant had a positive chemical test and admitted consuming
alcohol on two occasions. The court thereafter imposed a prison
sentence of 15 to 45 months and a period of conditional discharge
with the condition, among others, that an ignition interlock
device be installed in any vehicle owned or operated by him.
Defendant appeals.
We affirm. On appeal, defendant argues, for the first
time, that his guilty plea was not voluntary in that he was not
specifically advised during the plea allocution that a period of
conditional discharge would be imposed. The Legislature has
mandated that "[i]n addition to the imposition of any fine or
period of imprisonment . . ., the court shall also sentence such
person convicted of [driving while intoxicated] to a period of
probation or conditional discharge," with a condition requiring
an ignition interlock device in any vehicle owned or operated by
that person (Vehicle and Traffic Law § 1193 [1] [c] [iii]; see
Penal Law § 60.21; accord People v Brainard, 111 AD3d 1162, 1164
[2013]; see People v O'Brien, 111 AD3d 1028, 1029 [2013]). While
defendant's challenge to his guilty plea as involuntary survives
the uncontested appeal waiver, it was not preserved for our
review by a specific objection on the grounds now raised or by a
postallocution motion to withdraw his guilty plea (see People v
Tyrell, 22 NY3d 359, 363-364 [2013]; People v Griffin, 117 AD3d
1339, 1339 [2014]), and the narrow exception to the preservation
requirement was not implicated as defendant made no statements
calling into doubt the voluntariness of his plea (see People v
Tyrell, 22 NY3d at 364; People v Lopez, 71 NY2d 662, 666-667
[1988]).
Furthermore, the record reflects that defendant was advised
during the plea proceedings that he faced a potential period of
imprisonment and he was made aware of the requirement that he
would be subject to an ignition interlock condition, "which is
only effectuated through either the imposition of a period of
probation or conditional discharge" (People v Griffin, 117 AD3d
at 1339). At sentencing, defense counsel unsuccessfully objected
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to the imposition of a period of conditional discharge solely on
the ground that it constituted a multiple penalty, an argument
this Court has since rejected (see People v Brainard, 111 AD3d at
1163). Thus, because defendant had knowledge of a period of
conditional discharge at sentencing, we conclude that the
exception to the preservation doctrine does not apply (see People
v Peque, 22 NY3d 168, 182-183 [2013], cert denied ___ US ___, 135
S Ct 90 [2014]; People v Murray, 15 NY3d 725, 726-727 [2010];
compare People v Louree, 8 NY3d 541, 546 [2007]) and, therefore,
this argument is not preserved for our review. Under the
circumstances, we decline to take corrective action in the
interest of justice (see CPL 470.15 [6] [a]).
McCarthy, J.P., Egan Jr. and Devine, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court