People v. Scarborough

205 A.D.3d 1220

166 N.Y.S.3d 613 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Alexia N. SCARBOROUGH, Appellant.

111626

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: April 21, 2022

Decided and Entered: May 19, 2022

Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant.

Gary M. Pasqua, District Attorney, Canton (Alexander A.V. Nichols of counsel), for respondent.

Before: Garry, P.J., Lynch, Pritzker, Colangelo and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered July 15, 2019, convicting defendant upon her plea of guilty of the crime of driving while intoxicated.

Defendant was indicted on one count of driving while intoxicated as a felony (see Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c]).¹ Pursuant to a plea agreement, defendant pleaded guilty to that charge and signed a written appeal waiver. In exchange, among other terms and conditions, defendant was to receive a one-year period of interim probation with an opportunity to convert the conviction to a misdemeanor. Within two months, County Court found that defendant had failed to cooperate with the Probation Department's presentence investigation and with a chemical dependency evaluation. A new plea agreement was negotiated, pursuant to which defendant was permitted to withdraw her earlier guilty plea and enter a guilty plea to the reduced charge of driving while intoxicated as a misdemeanor, in exchange for, among other terms, a nine-month jail sentence (270 days) to be followed by a one-year conditional discharge. The agreement also required that an ignition interlock device be installed in any vehicle driven by defendant and that she waive her right to appeal. Defendant again signed the written appeal waiver and was thereafter sentenced in accordance with the negotiated plea agreement. Defendant appeals.

We affirm. Defendant argues that her guilty plea was not knowing, intelligent and voluntary. Specifically, defendant contends that County Court failed to make further inquiry after she denied consuming alcohol during her Probation Department interview, which would negate an element of the charged offense. Although this claim survives her appeal waiver, it is unpreserved given that the record does not reflect that she made an appropriate postallocution motion despite having had ample time in which to do so (see CPL 220.60[3] ; People v. Williams, 27 N.Y.3d 212, 219–222, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ). Further, the narrow exception to the preservation rule was not triggered here, "as the record does not reflect that defendant made any statements that cast doubt upon [her] guilt, negated an element of the crime, or called into question the voluntariness of [her] plea" ( People v. Brewster, 194 A.D.3d 1266, 1267, 144 N.Y.S.3d 402 [2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 690, 172 N.E.3d 802 [2021] ; see People v. Pastor, 28 N.Y.3d 1089, 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016] ; People v. Guerrero, 194 A.D.3d 1258, 1260, 147 N.Y.S.3d 264 [2021], lv denied 37 N.Y.3d 992, 152 N.Y.S.3d 412, 174 N.E.3d 352 [2021] ). Finally, defendant's denials concerning her consumption of alcohol on the night of the charged offense during her Probation Department interview were not reiterated when she entered her de novo guilty plea; therefore, there was no duty imposed upon County Court to inquire further (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Belcher–Cumba, 202 A.D.3d 1149, 1150, 160 N.Y.S.3d 500 [2022], lv denied ––– N.Y.3d ––––, ––– N.Y.S. ––––, N.E.3d ––––, 2022 WL 1478631 [Apr. 4, 2022] ; People v. Bah, 202 A.D.3d 486, 486, 158 N.Y.S.3d 823 [2022] ; People v. Sands, 45 A.D.3d 414, 415, 845 N.Y.S.2d 326 [2007], lv denied 10 N.Y.3d 816, 857 N.Y.S.2d 49, 886 N.E.2d 814 [2008] ).

Finally, defendant further argues that the sentence is harsh and excessive and that this claim is not precluded by the waiver of appeal, which she contends is invalid. Regardless of the validity...