| People v Vanbuskirk |
| 2015 NY Slip Op 02524 [126 AD3d 1239] |
| March 26, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vEric J. Vanbuskirk, Appellant. |
Tabner Ryan & Keniry, LLP, Albany (Brian M. Quinn of counsel), forappellant.
Karen A. Heggen, District Attorney, Ballston Spa (Ann C. Sullivan of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Saratoga County (Scarano,J.), rendered August 5, 2013, convicting defendant upon his plea of guilty of the crime ofdriving while intoxicated.
Defendant waived indictment and agreed to be prosecuted by a superior courtinstrument charging him with driving while intoxicated as a felony (see Vehicleand Traffic Law § 1192 [3]).[FN*] Pursuant to a plea agreement,defendant pleaded guilty to that charge and waived his right to appeal, both orally and inwriting. Consistent with the plea agreement, County Court sentenced defendant to aprison term of 1 to 3 years, followed by a three-year conditional discharge with ignitioninterlock conditions. Defendant appeals.
We affirm. Contrary to defendant's contention on appeal, he was clearly informedduring the plea colloquy and in the written appeal waiver that the plea agreementincluded a [*2]consecutive three-year period ofconditional discharge with ignition interlock conditions (see People v Griffin, 117AD3d 1339, 1339 [2014]). Where, as here, a person is convicted under Vehicle andTraffic Law § 1192 (3), a sentencing court is required to impose a period ofprobation or conditional discharge consecutive to any period of imprisonment and "shallorder the installation and maintenance of a functioning ignition interlock device" (PenalLaw § 60.21; see Vehicle and Traffic Law§§ 1193 [1] [c] [iii]; 1198 [2], [5]; People v Barkley, 113 AD3d 1002, 1002-1003 [2014]; People v Brainard, 111 AD3d1162, 1164 [2013]). Defendant's claim that consideration should have been given tohis ability to pay for the installation of this device was not raised at or before sentencing,and the record does not reflect that he made a postallocution motion to withdraw his pleaon this ground or an application for resentencing (see CPL 420.10 [5]). As such,the issue is unpreserved for our review (see CPL 470.05 [2]; People v Lazore, 102 AD3d1017, 1017-1018 [2013]), as is defendant's challenge to the presentence report(see People v Lazore, 102 AD3d at 1017-1018; People v Ruff, 50 AD3d1167, 1168 [2008]).
Lahtinen, J.P., Garry and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:An information settingforth defendant's prior conviction in 2006 under the same statutory subdivision fordriving while intoxicated was filed with the superior court instrument, which defendantadmitted, satisfying the statutory prerequisite to charge him with driving whileintoxicated as a felony (see Vehicle and Traffic Law § 1193 [1] [c][i]).