| People v Miazga |
| 2019 NY Slip Op 02927 [171 AD3d 1358] |
| April 18, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Joseph A. Miazga Jr., Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered February 2, 2017, which revoked defendant's probation and imposed a sentence ofimprisonment.
In March 2016, defendant pleaded guilty to two separate charges of felony driving whileintoxicated stemming from his actions in February and September 2015, and he was sentenced toconcurrent terms of six months in jail with five years of probation subject to certain terms andconditions.[FN1] InNovember 2016, declarations of delinquency were issued and defendant was charged, in twoviolation of probation (hereinafter VOP) petitions,[FN2] with violating several of the terms of hisprobation by, among other infractions, repeatedly testing positive for alcohol and being arrestedon misdemeanor charges. Pursuant to a plea agreement that satisfied all probation violationcharges,[FN3] defendantadmitted that he violated special condition No. 26 of the terms and conditions of his probation bytesting positive for alcohol on June 13, 2016 as charged in the first VOP petition. Defendant alsoadmitted that he violated special condition No. 1 by being arrested on misdemeanor charges onNovember 2, 2016, as charged in the second VOP petition. Consistent with the agreement,County Court revoked defendant's probation and imposed one-year jail terms upon eachconviction, to be served consecutively (see CPL 410.70 [5]). Defendant appeals.
Defendant argues that his admissions to violating the conditions of his probation were notknowing, voluntary and intelligent, and that his factual admission to the second VOP petitionwas insufficient. These contentions are unpreserved for our review, as defendant did not move towithdraw his admissions as is generally required to preserve such issues for our review (see People v Peterson, 147 AD3d1148, 1149 [2017]; People vJohnson, 125 AD3d 1052, 1052 [2015], lv denied 25 NY3d 1073 [2015]; People v Beach, 118 AD3d 905,905 [2014], lv denied 24 NY3d 959 [2014]). However, we recognize that defendant'sadmissions to the probation violations and the imposition of sentence occurred concurrently, atthe same proceeding. Assuming that, as a result, defendant did not have the practical ability tomake a postallocution motion and that his claims are, therefore, reviewable (see People v Conceicao, 26 NY3d375, 381 [2015]; People vSougou, 26 NY3d 1052, 1054 [2015]; People v Tyrell, 22 NY3d 359, 364 [2013]; People v Griffin, 165 AD3d 1316,1317 [2018]), we find no error.
The record reflects that County Court advised defendant of his rights in connection with theVOP petitions and the consequences of an admission to violating probation, and that defendantunderstood and accepted the plea terms and thereafter freely admitted violating the conditions ofhis probation (see People v Johnson, 125 AD3d at 1052; compare People v Aubain, 152 AD3d868, 870 [2017]). The record is devoid of any support for defendant's claims that he was"threatened" or that his "free will" was "broken" simply because there were multiple allegedprobation violations and criminal charges were pending in another court. Likewise, his claim thathe felt "pressure" to accept the plea deal because he was facing a significantly longer potentialprison term in the absence of the plea agreement is unavailing, as it "amounts to the type ofsituational coercion faced by many defendants who are offered a plea deal, and it does notundermine the voluntariness of defendant's [admissions to violating probation]" (People v Sparbanie, 158 AD3d942, 944 [2018] [internal quotation marks, brackets and citations omitted], lv denied31 NY3d 1087 [2018]).
We are similarly unpersuaded by defendant's contention that his factual admission to thesecond VOP petition was inadequate. Under the terms of the plea agreement outlined prior to hisadmission, defendant agreed to admit that he violated special condition No. 1 of the terms andconditions of his probation requiring that he not violate any laws and that he notify his probationofficer within 24 hours of being arrested. As contemplated by that agreement, defendant admittedthat, while on probation, he was arrested for petit larceny and resisting arrest and that his conductwas "in violation of [the] terms and conditions of probation." This admission was sufficient toestablish that defendant violated this condition of probation (see People v Wiggins, 151 AD3d 1859, 1860 [2017], lvdenied 30 NY3d 954 [2017]; Peoplev Romeo, 9 AD3d 744, 745 [2004]). Defendant's remaining claims similarly lackmerit.
Lynch, J.P., Clark, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:On defendant's appeal from thejudgment of conviction with respect to the September 2015 driving while intoxicated charge, thisCourt recently affirmed (People vMiazga, 167 AD3d 1167 [2018], lv denied 32 NY3d 1207 [2019]).
Footnote 2:The charges in the VOP petitionswere essentially the same with the exception of the allegations regarding defendant's admissionto drinking wine.
Footnote 3:The plea agreement alsocontemplated that defendant would enter a guilty plea to the misdemeanor charges pending inanother court and receive a sentence that would run concurrently with the sentences imposed onthis matter.