People v. Binns

• Decision Date: 24 March 2011
• Citation: 82 A.D.3d 1449,918 N.Y.S.2d 753
• Parties: The PEOPLE of the State of New York, Respondent, v. Jay J. BINNS, Appellant.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 753 82 A.D.3d 1449 The PEOPLE of the State of New York, Respondent, v. Jay J. BINNS, Appellant. Supreme Court, Appellate Division, Third Department, New York. March 24, 2011.

John G. Leaman, Hudson, for appellant.

Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: SPAIN, J.P., STEIN, McCARTHY, GARRY and EGAN JR., JJ.

GARRY, J.

Appeal from a judgment of the County Court of Ulster County (Milano, J.), rendered October 19, 2009, convicting defendant upon his plea of guilty of the crime of aggravated driving while intoxicated.

In full satisfaction of an eight-count indictment, defendant pleaded guilty to aggravated driving while intoxicated and waived his right to appeal. Pursuant to the plea agreement, defendant was to be sentenced to a prison term of 1 to 3 years. Following his plea, defendant failed to appear for sentencing and County Court issued a bench warrant. Thereafter, defendant was arrested and sentenced to a prison term of 1 1/3 to 4 years. Defendant now appeals.

We affirm. Initially, we reject defendant's contention that his waiver of the right to appeal was invalid. Prior to entering his plea, defendant was advised that he would be required, as a part of the plea, to waive his right to appeal, and he was allowed time to discuss the waiver with counsel. After County Court confirmed that defendant had ample time to discuss the waiver with counsel, a written waiver was executed in open court and defendant confirmed his understanding of its ramifications. Under these circumstances, we conclude that defendant validly waived his right to appeal ( see People v. Rosseter, 62 A.D.3d 1093, 1094, 878 N.Y.S.2d 512 [2009]; People v. Stokely, 49 A.D.3d 966, 967-968, 853 N.Y.S.2d 221 [2008] ).

Defendant also contends that the first count of the indictment, upon which he pleaded guilty, was jurisdictionally defective and his plea should therefore be vacated. Specifically, defendant argues that theindictment did not allege all the acts that constitute aggravated driving while intoxicated. While this claim survives defendant's guilty plea and appeal waiver ( see People v. Place, 50 A.D.3d 1313, 1314, 855 N.Y.S.2d 745 [2008], lv. denied 11 N.Y.3d 740, 864 N.Y.S.2d 399, 894 N.E.2d 663 [2008] ), "[a]n indictment count which incorporates by reference the statutory provision applicable to the charged crime sufficiently alleges all of the elements of that crime, rendering the count valid" ( People v. Downs, 26 A.D.3d 525, 526, 807 N.Y.S.2d 743 [2006], lv. denied 6 N.Y.3d 847, 816 N.Y.S.2d 753, 849 N.E.2d 976 [2006]; see People v. Brown, 75 A.D.3d 655, 656, 903 N.Y.S.2d 825 [2010]; People v. Place, 50 A.D.3d at 1314, 855 N.Y.S.2d 745; People v. Champion, 20 A.D.3d 772, 774, 798 N.Y.S.2d 567 [2005] ). Here, the indictment clearly included a specific reference to Vehicle and Traffic Law § 1192(2-a), incorporating the required elements of the crime. Accordingly, defendant was provided fair notice of the charges made against him ( see People...