| People v Badding |
| 2013 NY Slip Op 04176 [107 AD3d 1453] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRobert E. Badding, Jr., Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered July 14, 2011. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree and driving while ability impaired.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the sentence imposed for driving while ability impaired under thethird count of the indictment and as modified the judgment is affirmed, and the matter isremitted to Erie County Court for resentencing on that count.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of criminal possession of a weapon in the second degree (Penal Law §265.03 [3]) and driving while ability impaired (Vehicle and Traffic Law § 1192[1]). At the outset, we note that the certificate of conviction incorrectly reflects thatdefendant was convicted of driving while intoxicated, and it must therefore be amendedto reflect that he was convicted of driving while ability impaired (see People v Saxton, 32 AD3d1286, 1286-1287 [2006]).
Contrary to defendant's contention, the record establishes that the waiver of the rightto appeal was made knowingly, intelligently and voluntarily (see People v Zimmerman, 100AD3d 1360, 1361 [2012], lv denied 20 NY3d 1015 [2013]; see generally People v Lopez,6 NY3d 248, 256 [2006]). Additionally, defendant waived the right to raise hiscontention with respect to suppression on appeal inasmuch as he pleaded guilty beforeCounty Court issued its suppression ruling (see People v Lewandowski, 82 AD3d 1602, 1602 [2011];People v Taylor, 43 AD3d1400, 1400-1401 [2007], lv denied 9 NY3d 1039 [2008]). Defendant'sfurther contention that he was denied his statutory right to a speedy trial is foreclosed byhis guilty plea (see People v Hansen, 95 NY2d 227, 231 n 3 [2000]; People v Paduano, 84 AD3d1730, 1730 [2011]; Peoplev Faro, 83 AD3d 1569, 1569 [2011], lv denied 17 NY3d 858 [2011])and, in any event, does not survive the valid waiver of the right to appeal (seePaduano, 84 AD3d at 1730).
As the People correctly concede, however, the sentence imposed for driving whileability impaired is illegal. The court indicated at sentencing that defendant was convictedof driving while intoxicated and sentenced him for that misdemeanor offense, butdefendant actually [*2]pleaded guilty to driving whileability impaired, which is a traffic infraction (see Vehicle and Traffic Law§ 1193 [1]). We therefore modify the judgment by vacating the sentence imposedfor driving while ability impaired under the third count of the indictment, and we remitthe matter to County Court for resentencing on that count. Present—Centra, J.P.,Fahey, Lindley, Sconiers and Valentino, JJ.