| People v Carr |
| 2015 NY Slip Op 03578 [127 AD3d 1503] |
| April 30, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vGregory Carr, Appellant. |
Albert F. Lawrence, Greenfield Center, for appellant.
Mary E. Rain, District Attorney, Canton (Patricia C. Campbell, Syracuse, ofcounsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered May 14, 2013, convicting defendant upon his plea of guilty ofthe crime of driving while intoxicated.
Pursuant to a plea agreement, defendant waived indictment and entered a guilty pleato a superior court instrument charge of driving while intoxicated, a class E felony basedupon his prior conviction for driving while intoxicated (see Vehicle and TrafficLaw §§ 1192 [3]; 1193 [1] [c]), and waived his right to appeal. CountyCourt indicated that it intended to follow the sentencing recommendation of theProbation Department but agreed that, if defendant abided by the terms of hisrelease—including successfully completing substance abuse treatment, continuingto test negative for prohibited substances, and refraining from consuming alcohol orillegal substances—no prison time would be imposed. Defendant was released onsupervision in order to complete treatment, but that release was later revoked afterdefendant had a positive chemical test and admitted consuming alcohol on twooccasions. The court thereafter imposed a prison sentence of 15 to 45 months and aperiod of conditional discharge with the condition, among others, that an ignitioninterlock device be installed in any vehicle owned or operated by him. Defendantappeals.
We affirm. On appeal, defendant argues, for the first time, that his guilty plea wasnot voluntary in that he was not specifically advised during the plea allocution that aperiod of [*2]conditional discharge would be imposed.The Legislature has mandated that "[i]n addition to the imposition of any fine or periodof imprisonment . . ., the court shall also sentence such person convicted of[driving while intoxicated] to a period of probation or conditional discharge," with acondition requiring an ignition interlock device in any vehicle owned or operated by thatperson (Vehicle and Traffic Law § 1193 [1] [c] [iii]; see Penal Law§ 60.21; accordPeople v Brainard, 111 AD3d 1162, 1164 [2013]; see People v O'Brien, 111AD3d 1028, 1029 [2013]). While defendant's challenge to his guilty plea asinvoluntary survives the uncontested appeal waiver, it was not preserved for our reviewby a specific objection on the grounds now raised or by a postallocution motion towithdraw his guilty plea (seePeople v Tyrell, 22 NY3d 359, 363-364 [2013]; People v Griffin, 117 AD3d1339, 1339 [2014]), and the narrow exception to the preservation requirement wasnot implicated as defendant made no statements calling into doubt the voluntariness ofhis plea (see People v Tyrell, 22 NY3d at 364; People v Lopez, 71 NY2d662, 666-667 [1988]).
Furthermore, the record reflects that defendant was advised during the pleaproceedings that he faced a potential period of imprisonment and he was made aware ofthe requirement that he would be subject to an ignition interlock condition, "which isonly effectuated through either the imposition of a period of probation or conditionaldischarge" (People v Griffin, 117 AD3d at 1339). At sentencing, defense counselunsuccessfully objected to the imposition of a period of conditional discharge solely onthe ground that it constituted a multiple penalty, an argument this Court has sincerejected (see People v Brainard, 111 AD3d at 1163). Thus, because defendanthad knowledge of a period of conditional discharge at sentencing, we conclude that theexception to the preservation doctrine does not apply (see People v Peque, 22 NY3d168, 182-183 [2013], cert denied 574 US &mdash, 135 S Ct 90 [2014]; People v Murray, 15 NY3d725, 726-727 [2010]; compare People v Louree, 8 NY3d 541, 546 [2007]) and,therefore, this argument is not preserved for our review. Under the circumstances, wedecline to take corrective action in the interest of justice (see CPL 470.15 [6][a]).
McCarthy, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.