| People v Binns |
| 2011 NY Slip Op 02082 [82 AD3d 1449] |
| March 24, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jay J. Binns,Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Ulster County (Milano, J.),rendered October 19, 2009, convicting defendant upon his plea of guilty of the crime ofaggravated driving while intoxicated.
In full satisfaction of an eight-count indictment, defendant pleaded guilty to aggravateddriving while intoxicated and waived his right to appeal. Pursuant to the plea agreement,defendant was to be sentenced to a prison term of 1 to 3 years. Following his plea, defendantfailed to appear for sentencing and County Court issued a bench warrant. Thereafter, defendantwas arrested and sentenced to a prison term of 1
We affirm. Initially, we reject defendant's contention that his waiver of the right to appealwas invalid. Prior to entering his plea, defendant was advised that he would be required, as a partof the plea, to waive his right to appeal, and he was allowed time to discuss the waiver withcounsel. After County Court confirmed that defendant had ample time to discuss the waiver withcounsel, a written waiver was executed in open court and defendant confirmed his understandingof its ramifications. Under these circumstances, we conclude that defendant validly waived hisright to appeal (see People vRosseter, 62 AD3d 1093, 1094 [2009]; People v Stokely, 49 AD3d 966, 967-968 [2008]).[*2]
Defendant also contends that the first count of theindictment, upon which he pleaded guilty, was jurisdictionally defective and his plea shouldtherefore be vacated. Specifically, defendant argues that the indictment did not allege all the actsthat constitute aggravated driving while intoxicated. While this claim survives defendant's guiltyplea and appeal waiver (see People vPlace, 50 AD3d 1313, 1314 [2008], lv denied 11 NY3d 740 [2008]), "[a]nindictment count which incorporates by reference the statutory provision applicable to thecharged crime sufficiently alleges all of the elements of that crime, rendering the count valid" (People v Downs, 26 AD3d 525,526 [2006], lv denied 6 NY3d 847 [2006]; see People v Brown, 75 AD3d 655, 656 [2010]; People vPlace, 50 AD3d at 1314; People vChampion, 20 AD3d 772, 774 [2005]). Here, the indictment clearly included a specificreference to Vehicle and Traffic Law § 1192 (2-a), incorporating the required elements ofthe crime. Accordingly, defendant was provided fair notice of the charges made against him(see People v Ray, 71 NY2d 849, 850 [1988]; People v Place, 50 AD3d at 1314;People v Champion, 20 AD3d at 774; People v Chappelle, 250 AD2d 878, 879[1998], lv denied 92 NY2d 894 [1998]).
Spain, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.