| People v Valerio |
| 2013 NY Slip Op 06885 [110 AD3d 1015] |
| October 23, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Rafael Valerio, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Sharon Y. Brodt, and Mariana Zelig of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County(Camacho, J.), rendered December 13, 2011, convicting him of operating a motor vehiclewhile under the influence of alcohol or drugs in violation of Vehicle and Traffic Law§ 1192 (3) as a class E felony under indictment No. 2150/09, upon his plea ofguilty (Griffin, J.), and imposing sentence, (2) a judgment of the same court (Camacho,J.), also rendered December 13, 2011, convicting him of operating a motor vehicle whileunder the influence of alcohol or drugs in violation of Vehicle and Traffic Law §1192 (2) as a class D felony under indictment No. 348/11, upon his plea of guilty, andimposing sentence, and (3) a judgment of the same court (Mullings, J.), renderedDecember 22, 2011, convicting him of operating a motor vehicle while under theinfluence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192 (2) asa class E felony under superior court information No. 3446/11, upon his plea of guilty,and imposing sentence.
Ordered that the judgments are affirmed.
The defendant contends, among other things, that his plea agreement with respect toindictment No. 2150/09 was inherently illegal. That plea agreement provided formisdemeanor treatment of the defendant's conviction of operating a motor vehicle whileunder the influence of alcohol or drugs, in the event the defendant fulfilled certainconditions. The defendant now contends that his conviction was necessarily a felony inlight of his recent prior conviction of the same crime, and that misdemeanor treatmentwas therefore illegal. The defendant's contention is without merit. A defendant's priorconviction of operating a motor vehicle while under the influence of alcohol or drugs isan essential element of the crime of operating a motor vehicle while under the influenceof alcohol or drugs as a felony (see Vehicle and Traffic Law § 1193 [1][c]; cf. People v Cooper, 78 NY2d 476, 481 [1991]; People v Ramjattan,217 AD2d 597 [1995]; People v Hegedus, 146 AD2d 586, 587 [1989];People v Babcock, 86 AD2d 979, 979-980 [1982]). Accordingly, the existence ofthe prior conviction must be proven; felony classification is not automatic without suchproof. Thus, the agreement between the defendant and the People that, in the event thedefendant successfully completed a treatment program, the felony charge would bedismissed and his conviction of the misdemeanor would stand, was not illegal.[*2]
At the sentencing proceeding on indictment Nos.2150/09 and 348/11, the defendant was aware of the sentences he was to receive beforethe Supreme Court actually imposed those sentences. Nonetheless, he failed to move towithdraw his pleas of guilty or otherwise object to those sentences, on the ground heraises now, namely that the plea conditions had not been fully explained to him when hepleaded guilty. Accordingly, his claims are not preserved for appellate review (see People v Murray, 15 NY3d725, 726-727 [2010]; cf.People v McAlpin, 17 NY3d 936, 938 [2011]), and the circumstances do notwarrant the exercise of our interest of justice jurisdiction (see CPL 470.15 [3][c]).
The defendant's only contention regarding the judgment of conviction renderedunder superior court information No. 3446/11 is that it should be reversed if thejudgments rendered under indictment Nos. 2150/09 and 348/11 are reversed (seePeople v Fuggazzatto, 62 NY2d 862, 863 [1984]). In light of the affirmance of thosejudgments, the judgment rendered under superior court information No. 3446/11 must beaffirmed as well (see People vWashington, 93 AD3d 681, 682 [2012]; cf. People v Fuggazzatto, 62NY2d at 863). Balkin, J.P., Leventhal, Austin and Roman, JJ., concur.