| People v Stewart |
| 2012 NY Slip Op 01386 [92 AD3d 1146] |
| February 23, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Francis H.Stewart, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered July 29, 2010, convicting defendant upon his plea of guilty of (1) the crimes of drivingwhile intoxicated (two counts), aggravated unlicensed operation of a motor vehicle in the firstdegree and resisting arrest, (2) the traffic infractions of leaving the scene of a property damageincident without reporting and unsafe backing of a motor vehicle, and (3) the violations ofunlicensed operation of a motor vehicle and failure to notify the Department of Motor Vehiclesof a change of address.
In September 2009, defendant was arrested when it was alleged that, while intoxicated, hebacked a motor vehicle into the side of a gasoline truck while it was parked at a conveniencestore. Defendant, who apparently did not have a valid driver's license, fled the scene, but wassubsequently apprehended and placed under arrest. Thereafter, he waived indictment and agreedto be prosecuted by a superior court information (hereinafter SCI) that charged him with drivingwhile intoxicated as a felony (two counts), aggravated unlicensed operation of a motor vehicle inthe first degree, resisting arrest, leaving the scene of a property damage incident withoutreporting, unlicensed operation of a motor vehicle and two other violations of the Vehicle andTraffic Law. Prior to entering his guilty plea, County Court advised defendant that nocommitment had been made regarding the sentence that would be imposed if he pleaded guilty tothe charges in the SCI. Defendant ultimately pleaded guilty to all charges and was sentenced to[*2]an aggregate term of 2 to 6 years in prison. In addition, fineswere imposed on all but one of the charges to which defendant entered a guilty plea. This appealensued.
Initially, we note that the charges of aggravated unlicensed operation of a motor vehicle inthe first degree and unlicensed operation of a motor vehicle, as set forth in the SCI, simplyalleged that defendant, at the time he committed these crimes, was operating a motor vehicle in aparking lot, and not on a public highway (see People v Hurell-Harring, 66 AD3d 1126, 1127 [2009];People v Shaver, 290 AD2d 731, 731 [2002]; People v Hogabone, 278 AD2d525, 526 [2000]). The People concede that to commit these crimes, defendant had to haveoperated the motor vehicle on a public highway and, as a result, these convictions must bereversed and the counts dismissed (see Vehicle and Traffic Law § 511 [3]; §509 [1]; People v Hogabone, 278 AD2d at 526).
Next, defendant contends that he did not voluntarily plead guilty to resisting arrest and hisconviction of that crime should be vacated. However, defendant never moved to withdraw thisplea or vacate the judgment of conviction and, as a result, any claim that the plea was notvoluntary has not been preserved for our review (see People v Burke, 90 AD3d 1246, 1246 [2011]). Moreover,defendant did not make any statements during the plea allocution that would warrant making anexception to the requirement that an issue must be properly preserved for it to be the subject ofappellate review (see People vRobinson, 86 AD3d 719, 720 [2011]).
As for the remaining charges, County Court never advised defendant prior to entering hisplea that a fine could be imposed as part of his sentence (see People v Lafferty, 60 AD3d 1318, 1318 [2009]; People v McCarthy, 56 AD3d 904,905 [2008]; see generally People vHarnett, 16 NY3d 200, 295 [2011]; People v Hill, 9 NY3d 189 [2007]).[FN1]While County Court made no commitment as to sentence, defendant was entitled to know beforepleading guilty that a fine could be imposed as part of his sentence (see People v Thomas, 68 AD3d1445, 1446 [2009]; People v Lafferty, 60 AD3d at 1318; People v Calkins, 6 AD3d 744,745 [2004], lv denied 3 NY3d 671 [2004]). Accordingly, we remit the matter to CountyCourt to impose a sentence that does not include a fine on the remaining charges for whichdefendant presently stands convicted or, in the alternative, afford him an opportunity to withdrawhis guilty plea.[FN2]
Finally, any remaining arguments made by defendant not specifically addressed have beenexamined and found to be unpersuasive.
Mercure, A.P.J., Peters, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment ismodified, on the law, by reversing defendant's convictions of aggravated unlicensed operation ofa motor vehicle in the first degree and unlicensed operation of a motor vehicle under counts 3and 6 of the superior court information; said counts dismissed, the sentences imposed on counts1, 2, 3, 5, 6, 7 and 8 vacated and matter remitted to the County Court of Clinton County forfurther proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
Footnote 1: Such a challenge—thefailure to advise a defendant of a direct consequence of entering a guilty plea—is notprecluded where a motion has not been made to withdraw the plea or vacate the judgment ofconviction (see People v Thomas,68 AD3d 1445, 1446 n [2009]; seegenerally People v Louree, 8 NY3d 541 [2007]).
Footnote 2: County Court was not requiredto advise defendant that a mandatory surcharge would be imposed if he pleaded guilty, since suchadministrative fees are not considered part of the sentence (see People v Guerrero, 12 NY3d 45, 48 [2009]; People v Ryan, 83 AD3d 1128,1130 [2011]).