| People v Adams |
| 2022 NY Slip Op 00562 [201 AD3d 1311] |
| January 28, 2022 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v James Adams, Appellant. |
D.J. & J.A. Cirando, PLLC, Syracuse (John A. Cirando of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Bradley W. Oastler of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (Gordon J. Cuffy, A.J.),rendered November 5, 2018. The judgment convicted defendant, upon a plea of guilty, of drivingwhile intoxicated, as a class E felony, refusal to submit to a breath test and failure to keepright.
It is hereby ordered that the judgment so appealed from is modified on the law by reversingthat part convicting defendant of count two of the indictment, vacating defendant's guilty plea tothat count and dismissing that count, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of driving while intoxicated as a class E felony (Vehicle and Traffic Law§§ 1192 [3]; 1193 [1] [d] [4] [i]), "refus[ing a] breath test"(§ 1194 [1] [b]), and failure to keep right (§ 1120 [a]). Defendantpleaded guilty in the middle of trial after Supreme Court denied his request for a mistrialstemming from an evidentiary issue that arose during witness testimony.
Subject to an exception that does not apply here (see People v Rucinski, 24 AD3d 1171, 1173 [4th Dept 2005];People v Roe, 191 AD2d 844, 845 [3d Dept 1993]), a conviction for a nonexistent offenseconstitutes a "fundamental" error that "cannot be waived" (People v Martinez, 81 NY2d810, 812 [1993]), need not be preserved (see People v Gant, 189 AD3d 2160, 2161 [4th Dept 2020], lvdenied 36 NY3d 1097 [2021]), and is not forfeited by a guilty plea (see People v Bethea, 61 AD3d1016, 1017 [3d Dept 2009]; Rucinski, 24 AD3d at 1173; Roe, 191 AD2d at845). We are obligated to correct such a fundamental error sua sponte despite the parties' failureto brief the issue (see People vMcCann, 126 AD3d 1031, 1034 [3d Dept 2015], lv denied 25 NY3d 1167[2015]; Bethea, 61 AD3d at 1017). In this case, the purported traffic infraction to whichdefendant pleaded guilty under count two of the indictment—refusing the breath testmandated by Vehicle and Traffic Law § 1194 (1) (b)—is not a cognizableoffense for which a person may be charged or convicted in a criminal court (see People v Bembry, 199 AD3d1340, 1342 [4th Dept 2021]; Peoplev Malfetano, 64 Misc 3d 135[A], 2019 NY Slip Op 51147[U], *2 [App Term, 2d Dept,9th & 10th Jud Dists 2019]; Peoplev Villalta, 56 Misc 3d 59, 60-61 [App Term, 2d Dept, 9th & 10th Jud Dists 2017],lv denied 29 NY3d 1135 [2017]; see generally People v Prescott, 95 NY2d 655,659 [2001]; People v Thomas, 46 NY2d 100, 108 [1978], appeal dismissed 444US 891 [1979]). We therefore modify the judgment accordingly (see e.g. People v Santiago, 56 Misc 3d127[A], 2017 NY Slip Op 50813[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists2017]; People v Wrenn, 52 Misc 3d141[A], 2016 NY Slip Op 51193[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists2016], lv denied 28 NY3d 1032 [2016]; People v Carron, 51 Misc 3d 135[A], 2016 NY Slip Op 50555[U],*1 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).
As so modified, we affirm the judgment. By pleading guilty, defendant forfeited hischallenge to the merits of the court's mistrial ruling (see e.g. People v Alvarado, 103 AD3d 1101, [*2]1101 [4th Dept 2013], lv denied 21 NY3d 910 [2013];People v Robles, 160 AD2d 252, 252-253 [1st Dept 1990], lv denied 76 NY2d795 [1990]; People v Pampalone, 48Misc 3d 129[A], 2015 NY Slip Op 50982[U], *1 [App Term, 2d Dept, 9th & 10th JudDists 2015]; see generally People v West, 184 AD2d 743, 744 [2d Dept 1992], lvdenied 81 NY2d 767 [1992]). Contrary to defendant's related contention, the court's mistrialruling did not constitute coercion that negated the voluntariness of his subsequent guilty plea(see People v Lawson, 94 AD2d 809, 809-810 [3d Dept 1983]; People v Jones, 81AD2d 22, 45-49 [2d Dept 1981]; see generally Bordenkircher v Hayes, 434 US 357, 364[1978]; cf. People v Grant, 61 AD3d177, 182-184 [2d Dept 2009]). Contrary to defendant's further contention, "it is wellestablished that [his] monosyllabic . . . responses to questioning by [the court did]not render his plea unknowing and involuntary" (People v Rathburn, 178 AD3d 1421, 1421 [4th Dept 2019], lvdenied 35 NY3d 944 [2020] [internal quotation marks omitted]).
Defendant's remaining contention is academic. Finally, we note that the uniform sentenceand commitment form fails to reflect defendant's conviction of and sentence for the trafficinfraction of failing to keep right (Vehicle and Traffic Law § 1120 [a]) under countthree of the indictment, and the form must be corrected accordingly.
All concur except Troutman, J., who is not participating. Present—Whalen, P.J.,Centra, NeMoyer, Troutman and Winslow, JJ.