People v. Sirico

• Decision Date: 28 October 2015
• Docket Number: 2012-03683
• Citation: 135 A.D.3d 19,2015 N.Y. Slip Op. 07862,18 N.Y.S.3d 430
• Parties: The PEOPLE, etc., respondent, v. Allen SIRICO, appellant.
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 19
18 N.Y.S.3d 430
2015 N.Y. Slip Op. 07862

The PEOPLE, etc., respondent
v.
Allen SIRICO, appellant.

2012-03683

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

Oct. 28, 2015.

18 N.Y.S.3d 432

Richard L. Herzfeld, New York, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), for respondent.

18 N.Y.S.3d 433

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.

Opinion

LEVENTHAL, J.

135 A.D.3d 21

The main issue on this appeal is whether, following a plea of guilty, the defendant forfeited his claim that the County Court erred in determining that the People could introduce evidence at trial that he refused a chemical test pursuant to Vehicle and Traffic Law § 1194(2)(f). For the reasons discussed below, we answer this question in the affirmative.

On the afternoon of November 10, 2008, the defendant was driving north on Stony Brook Road in Suffolk County when he was involved in a three-car collision. The defendant was arrested at the accident scene and transported to a nearby hospital, where he refused to submit to a chemical test to determine the alcohol and drug content of his blood. He was subsequently charged with driving while ability impaired by drugs in violation of Vehicle and Traffic Law § 1192(4) and aggravated unlicensed operation of a motor vehicle in the first degree (three counts) in violation of Vehicle and Traffic Law § 511(3)(a). The defendant then moved to preclude evidence of his refusal to submit to a chemical test, contending, inter alia, that he was physically unable to refuse to undergo the test because of his condition after the accident. Following a pretrial hearing (hereinafter the refusal hearing) conducted in August 2009, the County Court ruled that the People would be permitted to introduce evidence at trial that the defendant refused to submit to a chemical test pursuant to Vehicle and Traffic Law § 1194(2)(f). The court found that the defendant received clear and unequivocal warnings regarding the ramifications of a refusal to submit to a

135 A.D.3d 22

chemical test and that the defendant, by his conduct, persisted in his refusal.

Thereafter, the defendant agreed to plead guilty to driving while impaired by drugs and aggravated unlicensed operation of a motor vehicle in the first degree (three counts) in exchange for concurrent indeterminate sentences of one to three years of imprisonment. During the course of the plea proceeding, the defendant admitted that he drove his motor vehicle while under the influence of Oxycodone, and that while impaired, he was involved in a motor vehicle accident. He also admitted that he had been afforded an opportunity to take a blood test but had refused to do so. On February 14, 2012, the County Court sentenced the defendant to an indeterminate term of imprisonment of one to three years on each conviction, to be served concurrently, in accordance with the plea agreement. Addressing the issue of restitution for the first time, the court stated “[t]here's a restitution judgment order in the amount of $500 that the Court has executed.” The court further imposed a $500 fine with respect to each count of aggravated unlicensed operation of a motor vehicle in the first degree pursuant to Vehicle and Traffic Law § 511(3)(a).

On appeal, the defendant initially contends that his plea was not knowing, voluntary, and intelligent because the County Court failed to sufficiently advise him of the constitutional rights he was waiving by pleading guilty. However, this contention is unpreserved for appellate review, because the defendant did not move to vacate his plea or otherwise raise the issue in the County Court (see CPL 220.60[3] ; People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 ; People v. Jackson, 114 A.D.3d 807, 979 N.Y.S.2d 704 ; People v. Ovalle, 112 A.D.3d 971, 977 N.Y.S.2d 401 ;

18 N.Y.S.3d 434

People v. Devodier, 102 A.D.3d 884, 958 N.Y.S.2d 220 ; cf. People v. Tyrell, 22 N.Y.3d 359, 981 N.Y.S.2d 336, 4 N.E.3d 346 ). In any event, this contention is without merit. The court adequately advised the defendant of certain constitutional rights he was surrendering by pleading guilty (see Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 ), and the record affirmatively demonstrates the defendant's understanding and waiver of these constitutional rights, and the entry of a knowing, voluntary, and intelligent plea of guilty (see People v. Harris, 61 N.Y.2d 9, 19–20, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. Isaiah S., 130 A.D.3d 1081, 13 N.Y.S.3d 840 ; People v. Jackson, 114 A.D.3d at 807–808, 979 N.Y.S.2d 704cf. People v. Tyrell, 22 N.Y.3d 359, 981 N.Y.S.2d 336, 4 N.E.3d 346 ).

The defendant further contends that the evidence presented at the refusal hearing did not demonstrate that he willfully

135 A.D.3d 23

refused to submit to a chemical test to determine the alcohol and drug content of his blood, and that the County Court thus erred in ruling that the People would be permitted to introduce evidence of his refusal at trial. Vehicle and Traffic Law § 1194 provides that any person who operates a motor vehicle in the State shall be deemed to have given consent to a chemical test of breath, blood, urine, or saliva, for the purpose of determining the alcohol and/or drug content of the blood (see Vehicle and Traffic Law § 1194[2][a] ). Vehicle and Traffic Law § 1194 also grants a motorist a qualified right to decline to voluntarily take a chemical test with the understanding that such a refusal will result in the immediate suspension and ultimate revocation of the motorist's driver license for a period of one year (see People v. Smith, 18 N.Y.3d 544, 548, 942 N.Y.S.2d 426, 965 N.E.2d 928 ). The statute further provides that where a motorist refuses to undergo a chemical test, evidence of such refusal “shall be admissible in any trial, proceeding or hearing” based upon a violation of Vehicle and Traffic Law § 1192, “but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal” (Vehicle and Traffic Law § 1194[2][f] ; see Matter of Gargano v. New York State Dept. of Motor Vehs., 118 A.D.2d 859, 860, 500 N.Y.S.2d 346 ). Evidence of a motorist's refusal to submit to a chemical test is relevant to the issue of consciousness of guilt (see People v. Thomas, 46 N.Y.2d 100, 106, 412 N.Y.S.2d 845, 385 N.E.2d 584 ; People v. Anderson, 89 A.D.3d 1161, 1162, 932 N.Y.S.2d 561 ).

The People respond that by pleading guilty, the defendant forfeited his right to challenge the propriety of the County Court's pretrial ruling to admit evidence of the defendant's refusal to submit to a chemical test. We agree.

The Court of Appeals has repeatedly observed that “a plea of guilty generally ‘marks the end of a criminal case, not a gateway to further litigation’ ” (People v. Pacherille, 25 N.Y.3d 1021, 1022–1023, 10 N.Y.S.3d 178, 32 N.E.3d 393, quoting People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755 ; see People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 ). A guilty plea signals the defendant's intention not to litigate the issue of his or her guilt, “and necessarily involves the surrender of certain constitutional rights, including the right to confrontation, the privilege against self incrimination and the right to trial by jury” (People v. Taylor, 65 N.Y.2d at 5, 489 N.Y.S.2d 152, 478 N.E.2d 755 [internal quotation marks omitted] ). A guilty plea not only encompasses a waiver of the specific rights attached to a trial, but also “effects a forfeiture of the right to renew

18 N.Y.S.3d 435

many arguments made before

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the plea” (id.; see People v. Hansen, 95 N.Y.2d at 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 ). “This is so because a defendant's ‘conviction rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial’ ” (People v. Hansen, 95 N.Y.2d at 230, 715 N.Y.S.2d 369, 738 N.E.2d 773, quoting People v. Di Raffaele, 55 N.Y.2d 234, 240, 448 N.Y.S.2d 448, 433 N.E.2d 513 ). The forfeiture occasioned by a guilty plea extends to a variety of claims, including those premised upon a failure to provide CPL 710.30 notice (see People v. Taylor, 65 N.Y.2d at 7, 489 N.Y.S.2d 152, 478 N.E.2d 755 ; People v. King, 110 A.D.3d 1005, 973 N.Y.S.2d 353 ), the statutory right to a speedy trial (see People v. O'Brien, 56 N.Y.2d 1009, 453 N.Y.S.2d 638, 439 N.E.2d 354 ; People v. Briggs, 123 A.D.3d 1051, 999 N.Y.S.2d 480 ), the exercise of alleged discriminatory peremptory challenges (see People v. Green, 75 N.Y.2d 902, 554 N.Y.S.2d 821, 553 N.E.2d 1331 ; People v. Collins, 280 A.D.2d 486, 719 N.Y.S.2d 899 ), and adverse...