People v. Stewart

• Decision Date: 23 February 2012
• Citation: 2012 N.Y. Slip Op. 01386,940 N.Y.S.2d 178,92 A.D.3d 1146
• Parties: The PEOPLE of the State of New York, Respondent, v. Francis H. STEWART, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01386
92 A.D.3d 1146
940 N.Y.S.2d 178

The PEOPLE of the State of New York, Respondent,
v.
Francis H. STEWART, Appellant.

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

Feb. 23, 2012.

[940 N.Y.S.2d 179]

R. Graham McNamara, Glenville, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.

Before: MERCURE, Acting P.J., PETERS, MALONE JR., KAVANAGH and McCARTHY, JJ.

KAVANAGH, J.

[92 A.D.3d 1146] Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered July 29, 2010, convicting defendant upon his plea of guilty of (1) the crimes of driving while intoxicated (two counts), aggravated unlicensed operation of a motor vehicle in the first degree and resisting arrest, (2) the traffic infractions of leaving the scene of a property damage incident without reporting and unsafe backing of a motor vehicle, and (3) the violations of unlicensed operation of a motor vehicle and failure to notify the Department of Motor Vehicles of a change of address.

In September 2009, defendant was arrested when it was alleged that, while intoxicated, he backed a motor vehicle into the side of a gasoline truck while it was parked at a convenience store. Defendant, who apparently did not have a valid driver's license, fled the scene, but was subsequently apprehended and placed under arrest. Thereafter, he waived indictment and agreed to be prosecuted by a superior court information (hereinafter SCI) that charged him with driving while intoxicated as a felony (two counts), aggravated unlicensed operation of a motor vehicle in the first degree, resisting arrest, leaving the scene of a property damage incident without reporting, unlicensed operation of a motor vehicle and two other violations of the Vehicle and Traffic Law. Prior to entering his guilty plea, County Court advised defendant that no commitment had been made regarding the sentence that would be imposed if he pleaded guilty to [92 A.D.3d 1147] the charges in the SCI. Defendant ultimately pleaded guilty to all charges and was sentenced to an aggregate term of 2 to 6 years in prison. In addition, fines were imposed on all but one of the charges to

[940 N.Y.S.2d 180]

which defendant entered a guilty plea. This appeal ensued.

Initially, we note that the charges of aggravated unlicensed operation of a motor vehicle in the first degree and unlicensed operation of a motor vehicle, as set forth in the SCI, simply alleged that defendant, at the time he committed these crimes, was operating a motor vehicle in a parking lot, and not on a public highway ( see People v. Hurell–Harring, 66 A.D.3d...