| People v Guevara-Lopez |
| 2020 NY Slip Op 07221 [189 AD3d 881] |
| December 2, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Salvador Guevara-Lopez, Appellant. |
Laurette D. Mulry, Riverhead, NY (Anju M. Alexander of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Nicole L. Gallo of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (StephenBraslow, J.), rendered December 4, 2018, convicting him of aggravated driving while intoxicatedwith a child (2 counts), driving while intoxicated, per se, driving while intoxicated, endangeringthe welfare of a child, and operating a motor vehicle the wrong way on a one-way roadway, uponhis plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid, as the County Court'scolloquy mischaracterized the scope of the waiver (see People v Thomas, 34 NY3d 545, 565-566 [2019]). Moreover,even a valid waiver of the right to appeal would not preclude review of the defendant's claimwith respect to the voluntariness of his plea (see People v Murphy, 114 AD3d 704, 704-705 [2014]).
The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligentis unpreserved for appellate review, as he did not move to vacate his plea prior to the impositionof sentence or otherwise raise the issue before the County Court (see People v Pray, 183 AD3d 842,842 [2020]; People v Karadag, 181AD3d 620 [2020]; People vPalladino, 140 AD3d 1194, 1194-1195 [2016]).
In any event, the defendant's contention is without merit. The chronology in which theCounty Court conducted the plea allocution does not render his plea invalid (see People vPray, 183 AD3d at 842; People vMartinez, 159 AD3d 836, 836 [2018]). Moreover, "[a] guilty plea is not invalid solelybecause the trial court failed to recite a defendant's constitutional rights under Boykin vAlabama" (People v Pellegrino,26 NY3d 1063, 1063 [2015]; accord People v Conceicao, 26 NY3d 375, 379 [2015]). "TheCounty Court's failure to recite all of the Boykin rights does not warrant vacatur of thedefendant's guilty plea, as the record as a whole affirmatively demonstrates that the defendantentered his plea understandingly and voluntarily" (People v Karadag, 181 AD3d at 621;see People v Conceicao, 26 NY3d at 383). Here, the court's express advisement to thedefendant that by pleading guilty he was waiving certain constitutional rights, taken together withthe rationality of the plea and the other assurances of voluntariness provided on the record,demonstrate that the [*2]defendant's plea of guilty was knowing,voluntary, and intelligent (see People v Harris, 61 NY2d 9, 21-22 [1983]; People vPray, 183 AD3d at 843; People vJackson, 114 AD3d 807, 808 [2014]). Mastro, J.P., Chambers, Brathwaite Nelson andChristopher, JJ., concur.