| People v Ryan |
| 2011 NY Slip Op 02753 [83 AD3d 1128] |
| April 7, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James R.Ryan, Appellant. |
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McCarthy, J. Appeal from a judgment of the County Court of Chemung County (Buckley,J.), rendered December 14, 2009, convicting defendant upon his plea of guilty of the crimes ofaggravated unlicensed operation of a motor vehicle in the first degree and driving whileintoxicated.
After he was caught driving without a license while his blood alcohol level was .22%,defendant was charged in a four-count indictment. In satisfaction of that indictment and otherpending charges, he pleaded guilty to one count each of aggravated unlicensed operation of amotor vehicle in the first degree (see Vehicle and Traffic Law § 511 [3] [a]) anddriving while intoxicated (see Vehicle and Traffic Law § 1192 [2-a]). The pleaagreement required defendant to enter a treatment program for substance abuse issues, withdifferent potential sentences depending upon whether he successfully completed the program.Defendant absconded before entering the treatment facility, subjecting him to a lengthiersentence. County Court imposed a sentence of 1 to 3 years in prison for aggravated unlicensedoperation of a motor vehicle in the first degree and one year in jail with a $500 fine for drivingwhile intoxicated, plus a mandatory surcharge, crime victim's assistance fee and Vehicle andTraffic Law fee. Defendant appeals.
Defendant was not denied the actual assistance of counsel. Counsel was assigned, filedmotions and was present with defendant at each court appearance. Defendant's allegations are[*2]better suited to a claim of ineffective assistance of counsel.
County Court did not err in denying defendant's motion to vacate his plea on the ground ofineffective assistance of counsel. Defendant now argues that counsel had a conflict of interest.We will not consider this argument because defendant accepted the assignment of counselwithout raising the alleged conflict, did not mention the alleged conflict to the court until afterthe plea was entered and did not include it as part of the grounds for his motion. While counsel'sfailure to inform defendant of the arraignment date led to a warrant being issued, the record doesnot support defendant's argument that counsel contributed to the court setting higher bail thatresulted in him remaining in jail. Instead, the court apparently set bail based upon defendant'slengthy criminal record and history of violating parole. The remaining assertions in defendant'smotion were contradicted by his statements during the plea allocution that he had reviewed theplea agreement with counsel, counsel had answered any questions to his satisfaction, he hadsufficient information to make an informed plea and "adequate opportunity to speak to [his]lawyer," and he was waiving pretrial hearings, including any challenge to probable cause or thelegality of the traffic stop. Based upon defendant's statements during the allocution, the court didnot err in denying his motion without a hearing (see People v Mitchell, 73 AD3d 1346, 1347 [2010], lvdenied 15 NY3d 922 [2010]; Peoplev Shovah, 67 AD3d 1257, 1258 [2009], lv denied 14 NY3d 773 [2010]).
Defendant's plea was not rendered involuntary by County Court's failure to mention, prior tothe plea, the mandatory surcharge, crime victim's assistance fee and Vehicle and Traffic Law feeassociated with his conviction. The Court of Appeals has held that such administrative fees "arenot components of a defendant's sentence" (People v Hoti, 12 NY3d 742, 743 [2009]). Accordingly, the court'sfailure to pronounce these charges prior to the plea does not deprive a person of the opportunityto voluntarily, knowingly and intelligently weigh the available options and accept a plea (seeid. at 743; People v Fauntleroy,57 AD3d 1167, 1168 [2008]).
The People concede, as they must, that the sentence imposed for aggravated unlicensedoperation of a motor vehicle in the first degree is invalid as a matter of law because it does notinclude a fine as required by statute (see Vehicle and Traffic Law § 511 [3] [b] [i]).An invalid sentence cannot stand, requiring us to vacate the sentence on that charge (see People v Bennett, 72 AD3d1124 [2010]; People v Peale, 122 AD2d 353, 354 [1986]). Consistent with thesentence that was imposed, the plea agreement did not include a fine for the aggravatedunlicensed operation charge. As defendant cannot receive the sentence contemplated by the pleaagreement, due to that sentence being illegal, upon remittal County Court must either securedefendant's agreement to be resentenced in compliance with the statute or afford him theopportunity to withdraw his plea (see People v Cameron, 83 NY2d 838, 840 [1994];People v Peale, 122 AD2d at 354).
Spain, J.P., Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment is modified, onthe law, by vacating the sentence imposed for the crime of aggravated unlicensed operation of amotor vehicle in the first degree; matter remitted to the County Court of Chemung County forfurther proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.