People v. Cyganik

• Decision Date: 06 October 2017
• Docket Number: 1128 KA 14-00585.
• Citation: 154 A.D.3d 1336,63 N.Y.S.3d 623
• Parties: The PEOPLE of the State of New York, Respondent, v. Alexander N. CYGANIK, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 1336
63 N.Y.S.3d 623

The PEOPLE of the State of New York, Respondent,
v.
Alexander N. CYGANIK, Defendant–Appellant.

1128 KA 14-00585.

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

Oct. 6, 2017.

63 N.Y.S.3d 623

Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DeJOSEPH, and WINSLOW, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of, among other things, driving while intoxicated (DWI) as a class D felony ( Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c] [ii] ). Defendant contends that his plea was not knowing, intelligent, and

63 N.Y.S.3d 624

voluntary because, before he pleaded guilty, County Court failed to inform him of the amount of the fine to be imposed and to advise him that, following his indeterminate term of imprisonment, he would be subject to a three-year conditional discharge, during which he would be required to install and maintain an ignition interlock device (IID) in his vehicle. It is undisputed that defendant's contention concerning the voluntariness of the plea survives his waiver of the right to appeal (see People v. Neal, 148 A.D.3d 1699, 1700, 50 N.Y.S.3d 666, lv. denied 29 N.Y.3d 1084, –––N.Y.S.3d ––––, ––– N.E.3d ––– –). Nonetheless, even assuming, arguendo, that the conditional discharge, like the fine, was a direct consequence of the plea, thereby requiring the court to advise defendant of such at the time of the plea (see People v. Panek, 104 A.D.3d 1201, 1202, 960 N.Y.S.2d 801, lv. denied 21 N.Y.3d 1018, 971 N.Y.S.2d 500, 994 N.E.2d 396 ; see generally Penal Law § 60.21 ; People v. Harnett, 16 N.Y.3d 200, 205, 920 N.Y.S.2d 246, 945 N.E.2d 439 ; People v. Ford, 86 N.Y.2d 397, 403, 633 N.Y.S.2d 270, 657 N.E.2d 265 ), we conclude that defendant was required to preserve his contention for our review, and he failed to do so.

Here, the court informed defendant during the plea proceeding that the matter would be transferred to the Rochester Drug Treatment Court (drug court), but that if defendant was terminated from the diversion program without successfully completing it, he would be subject to, among other things, concurrent terms of imprisonment with a cap of 2 to 6 years on the DWI charge, installation of an IID in his vehicle, and imposition of a fine. The court did not state the amount of the fine or that the installation of an IID would be effectuated through a three-year conditional discharge following defendant's indeterminate term of imprisonment. One week later, defendant appeared in drug court with defense counsel, and they both signed a Drug Treatment Court Felony Diversion Contract (Contract) on that date. Defendant initialed each of the enumerated conditions in the Contract, including a provision in which he expressly acknowledged that his termination from the diversion program would result in, among other things, a term of imprisonment capped at 2 to 6 years followed by a three-year conditional discharge with installation of an IID in his vehicle, and a fine. Defense counsel certified that she had explained to defendant his rights as...