| People v Cassara |
| 2011 NY Slip Op 07311 [88 AD3d 1069] |
| October 20, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Charles L.Cassara, Appellant. |
—[*1] Louise K. Sira, District Attorney, Johnstown (Chad W. Brown of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Fulton County (Giardino, J.),rendered September 2, 2010, convicting defendant upon his plea of guilty of the crime of drivingwhile intoxicated.
Defendant pleaded guilty to one count of driving while intoxicated (hereinafter DWI) as aclass E felony (see Vehicle and Traffic Law § 1192 [2]; § 1193 [1] [c] [i]) insatisfaction of an indictment charging him with two counts of DWI, and waived his right toappeal. The charges followed defendant's arrest near the scene of a vehicular accident in the Cityof Gloversville, Fulton County, and a toxicology test revealing that defendant had a bloodalcohol content of .17%. Defendant had a prior DWI conviction within the previous 10years.[FN*]In accordance with the plea agreement, County Court sentenced defendant to 1 to 3 years ofimprisonment—the minimum permissible sentence (see Penal Law § 70.00[2], [3] [b])—with a consecutive sentence of three years of conditional discharge.Defendant now appeals.[*2]
We affirm. Defendant's sole assertion on appeal is thattrial counsel was ineffective, specifically in failing to request a pretrial probable cause hearingchallenging his arrest or a hearing seeking to suppress his statement to the arresting officer thathe had consumed a "few" glasses of wine. Defendant, however, failed to move to withdraw hisplea or vacate the judgment of conviction, rendering the issue unpreserved for our review (see People v Wicks, 83 AD3d1223, 1224 [2011]; People v De Berardinis, 304 AD2d 914, 915 [2003], lvdenied 100 NY2d 580 [2003]). Further, this contention survives defendant's valid waiver ofthe right to appeal only to the extent that counsel's alleged ineffectiveness impacted thevoluntariness of his plea (see People vBelle, 74 AD3d 1477, 1480 [2010], lv denied 15 NY3d 918 [2010]; People v Stokely, 49 AD3d 966,968 [2008]).
As the record demonstrates that defendant was fully apprised of the rights he was giving upby pleading guilty, including all of his constitutional rights to present a defense, no basis exists tofind that defense counsel's decision not to request a Dunaway or Huntley hearinghad any impact upon the knowing and voluntary nature of his plea (see People v Parilla, 8 NY3d 654,659 [2007]; People v De Berardinis, 304 AD2d at 915; People v Clifford, 295AD2d 697, 698 [2002], lv denied 98 NY2d 709 [2002]). Further, defendant's appearance,impaired motor skills, slurred speech, positive breath screening test and inability to pass multiplefield sobriety tests suggest that a Dunaway hearing would have been futile (see Peoplev Kowalski, 291 AD2d 669, 670 [2002]). Given the results of the toxicology test, it is highlyunlikely that a Huntley hearing, even if successful, would have significantly altereddefendant's perception of his chances at an acquittal were he to proceed to trial. Accordingly, wehold that defendant's contentions are barred by his waiver of the right to appeal (see People v Santos-Rivera, 86 AD3d790, 791 [2011]; People vGentry, 73 AD3d 1383, 1384 [2010]; People v Leigh, 71 AD3d 1288, 1288 [2010], lv denied 15NY3d 775 [2010]; People v Clark,52 AD3d 951, 952 [2008], lv denied 11 NY3d 831 [2008]; People v McDuffie, 43 AD3d 559,560 [2007], lv denied 9 NY3d 992 [2007]).
Mercure, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Defendant's criminal recordincludes four felony and seven misdemeanor convictions.