| People v Cyganik |
| 2017 NY Slip Op 07074 [154 AD3d 1336] |
| October 6, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Alexander N. Cyganik, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.), renderedAugust 22, 2013. The judgment convicted defendant, upon his plea of guilty, of driving whileintoxicated, a class D felony, aggravated unlicensed operation of a motor vehicle in the firstdegree and driving a vehicle not equipped with an ignition interlock device.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of,among other things, driving while intoxicated (DWI) as a class D felony (Vehicle and TrafficLaw §§ 1192 [3]; 1193 [1] [c] [ii]). Defendant contends that his plea was notknowing, intelligent, and voluntary because, before he pleaded guilty, County Court failed toinform him of the amount of the fine to be imposed and to advise him that, following hisindeterminate term of imprisonment, he would be subject to a three-year conditional discharge,during which he would be required to install and maintain an ignition interlock device (IID) inhis vehicle. It is undisputed that defendant's contention concerning the voluntariness of the pleasurvives his waiver of the right to appeal (see People v Neal, 148 AD3d 1699, 1700 [2017], lv denied29 NY3d 1084 [2017]). Nonetheless, even assuming, arguendo, that the conditionaldischarge, like the fine, was a direct consequence of the plea, thereby requiring the court toadvise defendant of such at the time of the plea (see People v Panek, 104 AD3d 1201, 1202 [2013], lvdenied 21 NY3d 1018 [2013]; see generally Penal Law § 60.21; People v Harnett, 16 NY3d 200,205 [2011]; People v Ford, 86 NY2d 397, 403 [1995]), we conclude that defendant wasrequired to preserve his contention for our review, and he failed to do so.
Here, the court informed defendant during the plea proceeding that the matter would betransferred to the Rochester Drug Treatment Court (drug court), but that if defendant wasterminated from the diversion program without successfully completing it, he would be subjectto, among other things, concurrent terms of imprisonment with a cap of 2 to 6 years on the DWIcharge, installation of an IID in his vehicle, and imposition of a fine. The court did not state theamount of the fine or that the installation of an IID would be effectuated through a three-yearconditional discharge following defendant's indeterminate term of imprisonment. One week later,defendant appeared in drug court with defense counsel, and they both signed a Drug TreatmentCourt Felony Diversion Contract (Contract) on that date. Defendant initialed each of theenumerated conditions in the Contract, including a provision in which he expresslyacknowledged that his termination from the diversion program would result in, among otherthings, a term of imprisonment capped at 2 to 6 years followed by a three-year conditionaldischarge with installation of an IID in his vehicle, and a fine. Defense counsel certified that shehad explained to defendant his rights as affected by the Contract. Defendant was terminated fromthe diversion program after several months of participation, and he was sentenced by CountyCourt over nine months after he initially appeared in drug court and executed theContract.
[*2] The record thus establishes thatdefendant was made aware shortly after the plea and well before sentencing that, if he wasterminated from the drug court diversion program, his sentence would include a consecutivethree-year conditional discharge with the condition that an IID be installed in his vehicle.Inasmuch as defendant had a reasonable opportunity to challenge the validity of the plea on theground that the court failed to advise him before he pleaded guilty of the conditional discharge,we conclude that defendant was required to preserve that challenge for our review (see People v Williams, 27 NY3d212, 219-223 [2016]; People vCrowder, 24 NY3d 1134, 1136-1137 [2015]; People v Murray, 15 NY3d 725, 726-727 [2010]; cf. People v Louree, 8 NY3d 541,545-546 [2007]). He failed to do so, however, because he did not move to withdraw the plea orotherwise object to the imposition of the conditional discharge (see Williams, 27 NY3d at214; Crowder, 24 NY3d at 1136-1137). Likewise, inasmuch as the court adviseddefendant during the plea colloquy that it would impose a fine and defendant acknowledged inthe Contract that a fine would be a component of his sentence if he was terminated from thediversion program, we conclude that defendant had a reasonable opportunity to challenge theplea on the ground that the court failed to advise him of the amount of the fine, and thuspreservation was also required for that challenge (see Neal, 148 AD3d at 1700). "Byfailing to seize upon the[ ] opportunities to object or seek additional pertinent information,"defendant failed to preserve for our review his contention concerning the voluntariness of theplea (Williams, 27 NY3d at 223; see Murray, 15 NY3d at 727), and we declinedefendant's request to exercise our power to review that contention as a matter of discretion inthe interest of justice (see CPL 470.15 [3] [c]). Present—Smith, J.P., Peradotto,Lindley, DeJoseph and Winslow, JJ.