| People v Martinez |
| 2018 NY Slip Op 01619 [159 AD3d 836] |
| March 14, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Emilio Martinez, Appellant. |
Laurette D. Mulry, Riverhead, NY (Edward E. Smith of counsel), for appellant.
Timothy Sini, District Attorney, Riverhead, NY (Timothy P. Finnerty of counsel), forrespondent.
Appeals by the defendant from two judgments of the County Court, Suffolk County (StephenBraslow, J.), both rendered April 30, 2015, convicting him of driving while intoxicated, as afelony, in violation of Vehicle and Traffic Law § 1192 (2), driving whileintoxicated, as a felony, in violation of Vehicle and Traffic Law § 1192 (3),aggravated unlicensed operation of a motor vehicle in the first degree, and violation of Vehicleand Traffic Law § 1128 (a) under indictment No. 254-10, and driving whileintoxicated, as a felony, in violation of Vehicle and Traffic Law § 1192 (2), drivingwhile intoxicated, as a felony, in violation of Vehicle and Traffic Law § 1192 (3),resisting arrest, and violations of Vehicle and Traffic Law §§ 1128 (a) and1227 under indictment No. 232-15, upon his pleas of guilty, and imposing sentences.
Ordered that the judgments are affirmed.
Contrary to the People's contention, the defendant's waiver of the right to appeal does notpreclude him from making the arguments raised on appeal, as a claim that a plea of guilty wasnot voluntary survives a valid waiver of the right to appeal (see People v Seaberg, 74NY2d 1, 10 [1989]; People vBroccoli, 152 AD3d 536 [2017]; People v Solis, 111 AD3d 654, 655 [2013]; People v Joseph, 103 AD3d 665[2013]). However, the defendant's contention that his pleas were not knowingly, voluntarily, andintelligently entered because of the chronology in which the County Court conducted the pleaallocution is unpreserved for appellate review (see CPL 220.60 [3]; People v Williams, 27 NY3d 212,221-222 [2016]; People v Tyrell, 22NY3d 359, 363 [2013]) and, in any event, without merit (see generally People v Sougou, 26 NY3d 1052, 1054-1055 [2015];People v Conceicao, 26 NY3d375, 382-383 [2015]). The defendant's contention that the court erred in accepting his pleabecause certain statements he made to the court negated elements of certain offenses is alsounpreserved for appellate review. Accepting that his remarks triggered the court's duty to conducta further inquiry to ensure that the defendant's plea was knowingly, voluntarily, and intelligentlyentered (see People v Lopez, 71 NY2d 662, 666 [1988]), the plea minutes demonstratethat the court properly conducted such an inquiry at each instance. Having failed to movethereafter to withdraw his plea, the defendant waived any further challenge to the allocution and,thus, his contention is unpreserved for appellate review (see People v McNair, 13 NY3d 821, 823 [2009]). In any event, therecord demonstrates that the defendant's plea was knowingly, [*2]voluntarily, and intelligently entered (see People v Lopez,71 NY2d at 666; People v Broccoli, 152 AD3d at 536). Mastro, J.P., Cohen, LaSalle andBrathwaite Nelson, JJ., concur.