People v. Grubstein, 2011–314 OR CR.

• Decision Date: 10 December 2012
• Docket Number: No. 2011–314 OR CR.,2011–314 OR CR.
• Citation: 37 Misc.3d 142,966 N.Y.S.2d 348,2012 N.Y. Slip Op. 52285
• Parties: The PEOPLE of the State of New York, Appellant,- v. Howard GRUBSTEIN, Respondent.
• Court: New York Supreme Court — Appellate Division

37 Misc.3d 142
966 N.Y.S.2d 348
2012 N.Y. Slip Op. 52285

The PEOPLE of the State of New York, Appellant,-
v.
Howard GRUBSTEIN, Respondent.

No. 2011–314 OR CR.

Supreme Court, Appellate Term, New York,
9th and 10th Judicial Districts.

Dec. 10, 2012.

Appeal from an order of the Justice Court of the Town of Tuxedo, Orange County (Shawn M. Brown, J.), dated January 6, 2011. The order granted defendant's motion to vacate a judgment convicting defendant, upon his plea of guilty, of driving while intoxicated.
Present: NICOLAI, P.J., IANNACCI and LaSALLE, JJ.

ORDERED that the order is reversed, on the law, and defendant's motion to vacate the judgment of conviction is denied.

On October 30, 2008, defendant, charged with aggravated driving while intoxicated (Vehicle and Traffic Law § 1192[2–a] ) and driving while intoxicated (common law) (Vehicle and Traffic Law § 1192[3] ), appeared before the Justice Court of the Town of Tuxedo (Hume Stuyer, J.) without counsel and pleaded guilty to a charge of driving while intoxicated (Vehicle and Traffic Law § 1192[3] ). Thereafter, on that same day, a judgment of conviction was entered upon defendant's plea of guilty.

On June 5, 2010, defendant was again arrested for driving while intoxicated. Thereafter, defendant was indicted for violating Vehicle and Traffic Law § 1192(2–a) and Vehicle and Traffic Law § 1192(3) as class E felonies in light of his prior conviction ( seeVehicle and Traffic Law § 1193[1][c][i] ).

On November 5, 2010, defendant moved to “withdraw” his guilty plea to the charge entered on October 30, 2008, on the grounds that he had been pro se in that matter and, prior to entering his guilty plea, had neither been advised by the court nor aware that any subsequent charge of driving while intoxicated in New York would be charged as a felony, of any potential defenses, or of his right to challenge the basis for his arrest and any statements attributed to him by the arresting officer. The People opposed defendant's motion. The Justice Court (Shawn M. Brown, J.) construed defendant's motion as a motion to vacate the judgment of conviction pursuant to CPL 440 .10 and “upon a review of the motion papers, the opposition papers and the transcript of the October 30, 2008 plea and sentencing,” granted the motion. This appeal by the People ensued.

We find that, to the extent that adequate facts appeared in the record to evaluate certain of defendant's claims regarding the sufficiency of the plea allocution, the only...