People v. Cassara

• Citation: 2011 N.Y. Slip Op. 07311,931 N.Y.S.2d 272,88 A.D.3d 1069
• Parties: The PEOPLE of the State of New York, Respondent,v.Charles L. CASSARA, Appellant.
• Decision Date: 20 October 2011
• Court: New York Supreme Court Appellate Division

88 A.D.3d 1069
931 N.Y.S.2d 272
2011 N.Y. Slip Op. 07311

The PEOPLE of the State of New York, Respondent,
v.
Charles L. CASSARA, Appellant.

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

Oct. 20, 2011.

Matthew J. Leonardo, Albany, for appellant.Louise K. Sira, District Attorney, Johnstown (Chad W. Brown of counsel), for respondent.Before: MERCURE, J.P., SPAIN, MALONE JR., KAVANAGH and McCARTHY, JJ.SPAIN, J.

[88 A.D.3d 1069] Appeal from a judgment of the County Court of Fulton County (Giardino, J.), rendered September 2, 2010, convicting defendant upon his plea of guilty of the crime of driving while intoxicated.

Defendant pleaded guilty to one count of driving while intoxicated (hereinafter DWI) as a class E felony ( see Vehicle and Traffic Law § 1192 [2]; § 1193[1][c][i] ) in satisfaction of an indictment charging him with two counts of DWI, and waived his right to appeal. The charges followed defendant's arrest near the scene of a vehicular accident in the City of Gloversville, Fulton County, and a toxicology test revealing that defendant had a blood alcohol content of .17%. Defendant had a prior DWI conviction within the previous 10 years.¹ In accordance with the plea agreement, County Court sentenced defendant to 1 to 3 years of imprisonment—the minimum permissible sentence ( see Penal Law § 70.00[2], [ 3][b] )—with a consecutive sentence

[931 N.Y.S.2d 273]

of three years of conditional discharge. Defendant now appeals.

We affirm. Defendant's sole assertion on appeal is that trial counsel was ineffective, specifically in failing to request a pretrial probable cause hearing challenging his arrest or a hearing seeking to suppress his statement to the arresting officer that he had consumed a “few” glasses of wine. Defendant, however, failed to move to withdraw his plea or vacate the judgment of conviction, rendering the issue unpreserved for our review ( see People v. Wicks, 83 A.D.3d 1223, 1224, 920 N.Y.S.2d 488 [2011]; People v. De Berardinis, 304 A.D.2d 914, 915, 757 N.Y.S.2d 641 [2003], lv. denied 100 N.Y.2d 580, 764 N.Y.S.2d 390, 796 N.E.2d 482 [2003] ). [88 A.D.3d 1070] Further, this contention survives defendant's valid waiver of the right to appeal only to the extent that counsel's alleged ineffectiveness impacted the voluntariness of his plea ( see People v. Belle, 74 A.D.3d 1477, 1480, 902 N.Y.S.2d 258 [2010], lv. denied 15 N.Y.3d 918, 913 N.Y.S.2d 645, 939 N.E.2d 811 [2010]; People v. Stokely, 49 A.D.3d 966, 968, 853...