People v. Carr

Decision Date30 April 2015
Docket Number106104.
PartiesThe PEOPLE of the State of New York, Respondent, v. Gregory CARR, Appellant.
CourtNew York Supreme Court — Appellate Division

Albert F. Lawrence, Greenfield Center, for appellant.

Mary E. Rain, District Attorney, Canton (Patricia C. Campbell, Syracuse, of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.

Opinion

CLARK, J.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered May 14, 2013, convicting defendant upon his plea of guilty of the crime of driving while intoxicated.

Pursuant to a plea agreement, defendant waived indictment and entered a guilty plea to a superior court instrument charge of driving while intoxicated, a class E felony based upon his prior conviction for driving while intoxicated (see Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c] ), and waived his right to appeal. County Court indicated that it intended to follow the sentencing recommendation of the Probation Department but agreed that, if defendant abided by the terms of his release— including successfully completing substance abuse treatment, continuing to test negative for prohibited substances, and refraining from consuming alcohol or illegal substances—no prison time would be imposed. Defendant was released on supervision in order to complete treatment, but that release was later revoked after defendant had a positive chemical test and admitted consuming alcohol on two occasions. The court thereafter imposed a prison sentence of 15 to 45 months and a period of conditional discharge with the condition, among others, that an ignition interlock device be installed in any vehicle owned or operated by him. Defendant appeals.

We affirm. On appeal, defendant argues, for the first time, that his guilty plea was not voluntary in that he was not specifically advised during the plea allocution that a period of conditional discharge would be imposed. The Legislature has mandated that [i]n addition to the imposition of any fine or period of imprisonment ..., the court shall also sentence such person convicted of [driving while intoxicated] to a period of probation or conditional discharge,” with a condition requiring an ignition interlock device in any vehicle owned or operated by that person (Vehicle and Traffic Law § 1193 [1 ][c][iii]; see Penal Law § 60.21 ; accord People v. Brainard, 111 A.D.3d 1162, 1164, 975 N.Y.S.2d 498 [2013] ; see People v. O'Brien, 111 A.D.3d 1028, 1029, 975 N.Y.S.2d 219 [2013] ). While defendant's challenge to his guilty plea as involuntary survives the uncontested appeal waiver, it was not preserved for our review by a specific objection on the grounds now raised or by a postallocution motion to withdraw his guilty plea (see People v. Tyrell, 22 N.Y.3d 359, 363–364, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; People v. Griffin, 117 A.D.3d 1339, 1339, 986 N.Y.S.2d 683 [2014] ), and the narrow exception to the preservation requirement was not implicated as defendant made no statements calling into doubt the voluntariness of his plea (see People v. Tyrell, 22 N.Y.3d at 364, 981 N.Y.S.2d 336, 4 N.E.3d 346 ; People v. Lopez, 71 N.Y.2d 662, 666–667, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).

Furthermore, the record reflects that defendant was advised during the plea proceedings that he faced a potential period of imprisonment and he was made aware of the requirement that he would be subject to an ignition interlock condition, “which is only effectuated through either the imposition of a period of probation or conditional discharge” (People v. Griffin, 117 A.D.3d at 1339, 986 N.Y.S.2d...

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5 cases
  • People v. Neithardt, 105893.
    • United States
    • New York Supreme Court — Appellate Division
    • April 30, 2015
    ...; People v. Fate, 117 A.D.3d 1327, 1328, 986 N.Y.S.2d 672 [2014], lv. denied 24 N.Y.3d 1083, 1 N.Y.S.3d 10, 25 N.E.3d 347 [2014] ).127 A.D.3d 1503Defendant's further challenge to the voluntariness of her guilty plea survives her appeal waiver but, as she acknowledges, is unpreserved given h......
  • People v. Decenzo
    • United States
    • New York Supreme Court — Appellate Division
    • October 29, 2015
    ... ... Hare, 110 A.D.3d 1117, 1117, 972 N.Y.S.2d 361 [2013]; see also People v. Carr, 127 A.D.3d 1503, 1504, 7 N.Y.S.3d 700 [2015] ). Although defendant indeed indicated that he had taken Xanax prior to committing the underlying crime, defendant did not contend that he was unable to recall the subject events ( compare People v. Jimenez, 110 A.D.3d 740, 741, 972 N.Y.S.2d 100 [2013]; ... ...
  • People v. DeCenzo, 107521.
    • United States
    • New York Supreme Court — Appellate Division
    • October 29, 2015
    ...the voluntariness of his plea (see People v. Hare, 110 A.D.3d 1117, 1117, 972 N.Y.S.2d 361 [2013] ; see also People v. Carr, 127 A.D.3d 1503, 1504, 7 N.Y.S.3d 700 [2015] ). Although defendant indeed indicated that he had taken Xanax prior to committing the underlying crime, defendant did no......
  • People v. Bush
    • United States
    • New York Supreme Court — Appellate Division
    • July 29, 2020
    ...15 N.Y.3d 725, 726–727, 906 N.Y.S.2d 521, 932 N.E.2d 877 ; People v. Ullah, 130 A.D.3d 759, 760, 12 N.Y.S.3d 307 ; People v. Carr, 127 A.D.3d 1503, 1504–1505, 7 N.Y.S.3d 700 ). Under the circumstances of this case, we decline to reach the issue in the exercise of our interest of justice jur......
  • Request a trial to view additional results

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