| People v Madden |
| 2008 NY Slip Op 02346 [49 AD3d 1264] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JosephMadden, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Jessica Birkahn of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedSeptember 23, 2004. The judgment convicted defendant, upon his plea of guilty, of felonydriving while intoxicated, criminal possession of stolen property in the fourth degree, petitlarceny, reckless driving and numerous traffic infractions.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of,inter alia, felony driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; §1193 [1] [c] [former (i)]), arising out of a vehicle chase in which defendant led the police throughthe Towns of Chili and Henrietta. The crimes at issue in this appeal were committed in the Townof Henrietta. We agree with defendant that he did not validly waive his right to appeal withrespect to the denial of that part of his omnibus motion concerning the alleged violation of hisstatutory double jeopardy rights. Although defendant agreed with County Court's statement that,by pleading guilty, defendant was "giving up [his] right to appeal the double jeopardy issue," weconclude that the interchange between the court and defendant does not constitute a valid waiverby defendant of the right to appeal with respect to the statutory double jeopardy issue. "When atrial court characterizes an appeal as [a right] automatically extinguished upon entry of a guiltyplea, a reviewing court cannot be certain that the defendant comprehended the nature of thewaiver of appellate rights" (People vLopez, 6 NY3d 248, 256 [2006]). Here, the record does not "establish that the defendantunderstood that the right to appeal is separate and distinct from those rights automaticallyforfeited upon a plea of guilty" (id.).
Contrary to the further contention of defendant, however, we conclude that the courtproperly determined that there was no statutory double jeopardy violation. The record establishesthat, prior to being indicted for the offenses committed in the Town of Henrietta, defendantpleaded guilty to traffic offenses pending in the Town of Chili arising out of the same incident.Defendant did not move for consolidation of the charges and, pursuant to CPL 40.40, "theprohibition against separate prosecution of jointly prosecutable offenses applies only ifthe defendant has requested consolidation thereof for trial purposes and the request is denied"(People v Dean, 56 AD2d 242, 246 [1977], affd 45 NY2d 651 [1978], reargdenied 46 NY2d 940 [1979]). Although [*2]defendantcontends for the first time on appeal that there was a constitutional double jeopardy violation, heis not required to preserve that contention for our review (see People v Biggs, 1 NY3d 225, 231 [2003]), and the contentionsurvives his guilty plea (see People v Hansen, 95 NY2d 227, 231 n 2 [2000]). We furtherconclude on the record before us, however, that there was no constitutional double jeopardyviolation (see People v Dodge, 38AD3d 1324, 1325 [2007], lv denied 9 NY3d 874 [2007]; see generallyBiggs, 1 NY3d at 228-229). Present—Martoche, J.P., Lunn, Fahey, Peradotto andPine, JJ.