| People v Mendoza |
| 2024 NY Slip Op 05357 [231 AD3d 1170] |
| October 30, 2024 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Margareth Mendoza, Appellant. |
Joseph Z. Amsel, New York, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Autumn S. Hughes and MonicaM.C. Leiter of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Patricia A. Harrington, J.), rendered November 17, 2020, convicting her of aggravateddriving while intoxicated with a child passenger, aggravated driving while intoxicatedper se, and endangering the welfare of a child, upon her plea of guilty, and imposingsentence.
Ordered that the judgment is affirmed.
The record does not establish that the defendant's waiver of the right to appeal wasknowing, voluntary, and intelligent, as the record does not demonstrate that thedefendant understood that the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Cruz, 177 AD3d766, 767 [2019]). Thus, the purported waiver does not preclude this Court's reviewof the defendant's excessive sentence claim.
Nevertheless, the sentence imposed was not excessive (see People v Suitte,90 AD2d 80 [1982]).
The defendant's contention that the sentence was illegal based upon the condition ofprobation that she submit to warrantless searches of her person, property, residence, orvehicle under her control by a probation officer is without merit. The defendant, whooperated a motor vehicle with a blood alcohol content of approximately .25%, wasconvicted of, inter alia, aggravated driving while intoxicated with a child passenger andaggravated driving while intoxicated per se. Under the circumstances, the consent tosearch condition of probation was properly imposed as it was individually tailored inrelation to the offenses and was, therefore, reasonably related to the defendant'srehabilitation, or necessary to ensure that the defendant will lead a law abiding life(see Penal Law § 65.10 [1]; People v Hale, 93 NY2d 454,461-462 [1999]).
The defendant's contention that her plea of guilty was not knowing, voluntary, andintelligent is unpreserved for appellate review, as she did not move to withdraw her pleaor otherwise raise the issue before the Supreme Court (see People v Peque, 22 NY3d168, 182 [2013]; People vBrown, 170 AD3d 878, 879 [2019]), and an exception to the preservation rule isinapplicable in this case (seePeople v Kaye, 190 AD3d 767, 768 [2021]). In any event, the defendant's pleaof guilty was knowingly, [*2]voluntarily, andintelligently entered. Iannacci, J.P., Maltese, Wan and Golia, JJ., concur.