People v. Cesar, 2013-02141

• Decision Date: 22 July 2015
• Docket Number: 2013-02141
• Citation: 14 N.Y.S.3d 100,2015 N.Y. Slip Op. 06252,131 A.D.3d 223
• Parties: The PEOPLE, etc., respondent, v. Luis CESAR, appellant.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 223
14 N.Y.S.3d 100
2015 N.Y. Slip Op. 06252

The PEOPLE, etc., respondent
v.
Luis CESAR, appellant.

2013-02141

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

July 22, 2015.

14 N.Y.S.3d 102

Alex Smith, Middletown, N.Y., for appellant.

David M. Hoovler, District Attorney, Middletown, N.Y. (Andrew R. Kass of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN and COLLEEN D. DUFFY, JJ.

Opinion

DILLON, J.P.

131 A.D.3d 224

In this matter, we are called upon to address an issue of first impression in New York appellate courts: whether an undocumented immigrant must be sentenced to a period of incarceration

131 A.D.3d 225

rather than to a term of probation because the continuing violation of federal immigration laws would constitute an automatic violation of the standard conditions of probation. We hold that while a defendant's undocumented immigration status may be considered by sentencing courts as one factor in determining whether an appropriate sentence should include incarceration, probation, or a combination of both, courts may not rely solely upon a defendant's undocumented immigration status in imposing a sentence of incarceration to the exclusion of all other relevant factors.

I. Facts

By way of background, the defendant was charged with aggravated driving while intoxicated (Vehicle and Traffic Law § 1192[2–a][a] ), driving while intoxicated (Vehicle and Traffic Law § 1192[2] ; [3] ), and aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511[3] ), arising out of a traffic stop in Orange County on August 5, 2012. He was administered a test that revealed a .20% blood alcohol content, and had previously been convicted of a driving while intoxicated as a misdemeanor in the City Court of Newburgh on March 21, 2011. On January 8, 2013, the defendant, while represented by counsel, entered a plea of guilty in the County Court to the Class E felony of aggravated driving while intoxicated in violation of Vehicle and Traffic Law § 1192(2–a)(a) in full satisfaction of the various charges, answered standard questions on voir dire, and waived in writing his right to appeal after a specific voir dire conducted by the court.

The defendant is an undocumented immigrant. The record of the plea proceedings includes a summary of the County Court's earlier discussion with the prosecutor and defense counsel regarding the

14 N.Y.S.3d 103

anticipated sentence. The People requested a sentence that included both a period of incarceration and five years of probation. The defense sought probation in lieu of any incarceration. The court stated that, upon a plea of guilty, it would not sentence the defendant to probation but would instead impose a sentence of incarceration. It reasoned that if the defendant were to be placed on probation, he would be in immediate violation of such sentence since probation typically prohibits the violation of any law, and the defendant's undocumented status would constitute a violation of federal immigration law. The defendant entered his plea of guilty knowing that his sentence would include incarceration rather than probation. At the sentencing proceeding on February 28, 2013, the

131 A.D.3d 226

defendant was sentenced to eight months of incarceration in addition to a mandatory fine, surcharge, and license revocation.

The issues presented on this appeal include whether the defendant was bound by the waiver of his right to appeal, whether his claims are preserved for appellate review, and the extent of the trial court's discretion in imposing a sentence complicated by the defendant's undocumented immigration status. By decision and order on motion dated February 28, 2013, a Justice of this Court stayed the execution of the judgment of conviction pending the determination of this appeal.

II. The Waiver of The Right To Appeal

As a threshold issue, the People argue that the instant appeal is foreclosed by the defendant's waiver of his appellate rights and remedies. The record contains a written waiver of the right to appeal executed by the defendant, which was the subject of a specific voir dire conducted by the Court. Generally, waivers of the right to appeal are valid and enforceable. However, we conclude that the defendant's otherwise valid waiver of the right to appeal is not an obstacle to this appeal. In People v. Brathwaite, 263 A.D.2d 89, 703 N.Y.S.2d 191, this Court noted that “[a] defendant may not waive his right to appellate review of certain claims, such as ... constitutional claims” that “implicate a larger societal interest in their correct resolution which embrace[s] the reality of fairness in the process itself” (id. at 91, 703 N.Y.S.2d 191 [internal quotation marks omitted]; see People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ). We find that this exception is applicable to the particular facts and issues raised on the defendant's appeal.

III. Preservation

The defendant argues on appeal that the County Court did not properly exercise its sentencing discretion under the Criminal Procedure Law and violated his rights under the Due Process, Equal Protection, and Privileges and Immunities clauses of the New York Constitution. The People argue that the defendant failed to raise these issues at his plea and sentence proceedings, and that they are therefore unpreserved for appellate review. The defendant contends that preservation is not required because the court's imposition of an illegal sentence constitutes a mode of proceedings error not subject to the preservation rule (see People v. Santiago, 22 N.Y.3d 900, 903, 977 N.Y.S.2d 144, 999 N.E.2d 507 ; People v. Gonzalez, 99 N.Y.2d 76, 86, 751 N.Y.S.2d 830, 781 N.E.2d 894 ; People v. Samms, 95 N.Y.2d 52, 55–56, 710 N.Y.S.2d 310, 731 N.E.2d 1118 ; People v. Agramonte, 87 N.Y.2d 765, 769–770, 642 N.Y.S.2d 594, 665 N.E.2d 164 ;

131 A.D.3d 227

People v. Letterlough, 86 N.Y.2d 259, 263 n. 1, 631 N.Y.S.2d 105, 655 N.E.2d 146 ;

14 N.Y.S.3d 104

Matter of Ramon H.–T., 87 A.D.3d 1141, 1142, 930 N.Y.S.2d 49 ; People v. Ramos, 45 A.D.3d 702, 703, 850 N.Y.S.2d 107 ).

The People are correct that the defendant failed to preserve before the County Court the arguments he now raises on appeal. At no time during the plea and sentence proceedings did defense counsel ever raise any objection regarding judicial discretion or constitutional issues. The sentence imposed by the County Court, including the incarceration component, was within the authorized range of sentences established by the New York State Legislature for the offense at issue (see Vehicle and Traffic Law § 1193[1] [c][i] ). Objections based upon a sentencing court's improper delegation of discretion or its failure to exercise discretion must be preserved to be reviewable (see People v. Russo, 85 N.Y.2d 872, 874, 626 N.Y.S.2d 51, 649 N.E.2d 1195 ; People v. Gary, 106 A.D.3d 932, 933, 964 N.Y.S.2d 656 ). Constitutional due process and equal protection claims also must be preserved (see People v. Russo, 85 N.Y.2d at 874, 626 N.Y.S.2d 51, 649 N.E.2d 1195 ; People v. Filer, 97 A.D.3d 1095, 1097, 947 N.Y.S.2d 743 ; People v. Jackson, 71 A.D.3d 1457, 1458, 896 N.Y.S.2d 756 ; People v. Corker, 67 A.D.3d 926, 926–927, 888 N.Y.S.2d 418 ; People v. Lashley, 58 A.D.3d 753, 754, 872 N.Y.S.2d 162 ). Moreover, any claim that the County Court improperly considered the defendant's undocumented immigration status in imposing sentence must likewise be preserved for appellate review (see People v. Kaplan, 199 A.D.2d 82, 83, 606 N.Y.S.2d 151 ).

Notwithstanding the foregoing, we choose...