| People v Flagg |
| 2013 NY Slip Op 04536 [107 AD3d 1613] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Christian L. Flagg, Appellant. (Appeal No.1.) |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a resentence of the Erie County Court (Michael F. Pietruszka, J.),rendered July 27, 2011. Defendant was resentenced upon his conviction of driving whileintoxicated, a misdemeanor, and vehicular manslaughter in the second degree.
It is hereby ordered that the resentence so appealed from is unanimously modified onthe law by vacating the term of probation imposed on count four of the indictment and asmodified the resentence is affirmed.
Memorandum: Defendant was convicted upon his plea of guilty of vehicularmanslaughter in the second degree (Penal Law § 125.12 [1]) and driving whileintoxicated (Vehicle and Traffic Law § 1192 [3]). In appeal No. 1, he appeals froma resentence that added a term of probation with respect to each count requiringdefendant to equip with an ignition interlock device (IID) any vehicle owned or operatedby him. In appeal No. 2, defendant appeals from the judgment of conviction.
As the People correctly concede in appeal No. 1, the resentence is illegal insofar asCounty Court directed that defendant serve a term of five years of probation followingthe indeterminate term of imprisonment of 2 to 6 years on the conviction of vehicularmanslaughter in the second degree (see Penal Law § 60.01 [2] [d]).Contrary to defendant's contention that the term of imprisonment therefore must bereduced, however, we agree with the People that the proper remedy is to vacate the termof probation imposed on the vehicular manslaughter count. We therefore modify theresentence accordingly. Section 60.21 requires a court to sentence a defendant convictedof a violation of Vehicle and Traffic Law § 1192 (2), (2-a) or (3) to a period ofprobation or conditional discharge and to order the installation and maintenance of afunctioning IID. Section 60.21 does not apply, however, to vehicular manslaughter in thesecond degree (see Penal Law § 125.12; William C. Donnino, PracticeCommentary, McKinney's Cons Laws of NY, Penal Law § 60.21; compareVehicle and Traffic Law § 1198 [2] [a]).
Contrary to defendant's contention in appeal No. 2, we conclude that he knowingly,intelligently and voluntarily waived his right to appeal as a condition of the plea (see generally [*2]People v Lopez, 6 NY3d 248, 256 [2006]). Thecourt "engage[d] the defendant in an adequate colloquy to ensure that the waiver of theright to appeal was a knowing and voluntary choice" (People v James, 71 AD3d 1465, 1465 [2010] [internalquotation marks omitted]), and the record establishes that he "understood that the right toappeal is separate and distinct from those rights automatically forfeited upon a plea ofguilty" (Lopez, 6 NY3d at 256). That valid waiver forecloses any challenge bydefendant to the court's suppression ruling (see People v Davis, 64 AD3d 1190, 1190 [2009], lvdenied 13 NY3d 859 [2009]), or to the severity of the sentence (see People v Harris, 94 AD3d1484, 1485 [2012], lv denied 19 NY3d 961 [2012]; see generally Peoplev Lococo, 92 NY2d 825, 827 [1998]). Present—Centra, J.P., Peradotto,Sconiers, Valentino and Whalen, JJ.