| People v Rushlow |
| 2016 NY Slip Op 02481 [137 AD3d 1482] |
| March 31, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Steven F. Rushlow Jr., Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (George J. Hoffman Jr. ofcounsel), for appellant.
Mary E. Rain, District Attorney, Canton (Ramy Louis of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered December 16, 2013, convicting defendant upon his pleas ofguilty of the crimes of aggravated driving while intoxicated and driving whileintoxicated.
In June 2013, in satisfaction of a three-count indictment, defendant pleaded guilty toaggravated driving while intoxicated and waived his right to appeal, both orally and inwriting. At the time of his guilty plea, he was participating in a substance abuse treatmentprogram and was expected to continue to do so while the criminal matter was pending.He was released to probation supervision pending sentencing, which was set forSeptember 2013. At that time, he was to be sentenced under the terms of the pleaagreement to six months in jail and five years of probation.
Prior to sentencing, however, defendant violated the conditions of his probationrelease multiple times and he was arrested for driving while intoxicated. He waivedindictment with respect to the new charge and agreed to be prosecuted by a superiorcourt information. Plea proceedings ensued during which County Court adviseddefendant that, if he pleaded guilty to the new crime, he would be sentenced to a prisonterm of 1
Initially, we find that defendant's appeal waivers were valid inasmuch as "CountyCourt adequately explained the nature of the rights that defendant was waiving, theappeal rights that he could not waive, and that the right to appeal is separate and distinctfrom the rights automatically forfeited upon a plea of guilty" (People v Lyman, 119 AD3d968, 969 [2014]; see Peoplev Lopez, 6 NY3d 248, 256-257 [2006]; People v Perkins, 125 AD3d 1045, 1047 [2015]). Thus, heis precluded from challenging the respective sentences as harsh or excessive (see People v Rubio, 133 AD3d1041, 1042 [2015]; People v Perkins, 125 AD3d at 1047).
Defendant further argues that County Court erred in imposing an enhanced sentenceon the aggravated driving while intoxicated conviction because he was not advised of thepotential consequences of his failure to comply with supervised release conditions or thathis arrest prior to sentencing would subject him to an enhanced sentence. Althoughdefendant's valid appeal waiver does not foreclose him from raising this claim, it has notbeen preserved for our review due to defendant's failure to either object to the enhancedsentence or make a motion to withdraw his plea (see People v Bucknor, 116 AD3d 1233, 1234 [2014]; People v Stanley, 100 AD3d1152, 1152-1153 [2012]). Nevertheless, despite the lack of preservation, we shallexercise our interest of justice jurisdiction to take corrective action.
"A sentencing court may not impose an enhanced sentence unless it has informed thedefendant of specific conditions that the defendant must abide by or risk suchenhancement, or give the defendant an opportunity to withdraw his or her plea before theenhanced sentence is imposed" (People v Tole, 119 AD3d 982, 984 [2014]; see People v Lewis, 98 AD3d1186, 1186 [2012]; Peoplev Lindsey, 80 AD3d 1005, 1006 [2011]). Here, the plea involving theaggravated driving while intoxicated charge does not reveal that County Courtconditioned the sentencing commitment on defendant's compliance with the terms of hisprobation supervision release or that it gave him a Parker/Outley warningadvising him that his arrest pending sentencing could expose him to an enhancedsentence. Given this failure, County Court had an affirmative obligation to providedefendant with the opportunity to withdraw his plea to the aggravated driving whileintoxicated charge once the court planned on imposing an enhanced sentence (seePeople v Lewis, 98 AD3d at 1187; People v Bonacci, 52 AD3d 1189, 1189 [2008]). Therecord does not establish that the court provided defendant with such an opportunity orotherwise "demonstrate that defendant understood and knowingly waived the right towithdraw his plea" (People v Lewis, 98 AD3d at 1187). Therefore, we vacate thesentence on the aggravated driving while intoxicated charge and remit the matter toCounty Court to impose the agreed-upon sentence or provide defendant with the optionto withdraw his plea to that charge (see People v Tole, 119 AD3d at 984;People v Stanley, 100 AD3d at 1153; People v Lewis, 98 AD3d at1187).
McCarthy, J.P., Egan Jr., Rose and Devine, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by vacating the sentenceimposed on defendant's conviction of aggravated driving while intoxicated; matterremitted to the County Court of St. Lawrence County for further proceedings notinconsistent with this Court's decision; and, as so modified, affirmed.