People v. Wiggins

• Decision Date: 30 November 2010
• Parties: The PEOPLE, etc., respondent, v. Bruce M. WIGGINS, Jr., appellant.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 664
78 A.D.3d 1208

The PEOPLE, etc., respondent,
v.
Bruce M. WIGGINS, Jr., appellant.

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

Nov. 30, 2010.

Mark Diamond, New York, N.Y., for appellant.

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

78 A.D.3d 1208

Appeals by the defendant from (1) a judgment of the County Court, Suffolk County (Hudson, J.), rendered January 14, 2010,

78 A.D.3d 1209

convicting him of aggravated unlicensed operation of a motor vehicle in the first degree and aggravated driving while intoxicated under Indictment No. 1782-09, upon his plea of guilty, and imposing sentence, and (2) an amended judgment of the same court, also rendered January 14, 2010, revoking a sentence of conditional discharge previously imposed by the same court upon a finding that he had violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of driving while intoxicated under Indictment No. 2450-08.

ORDERED that the judgment and the amended judgment are affirmed.

Contrary to the defendant's contention, he knowingly, voluntarily, and intelligently waived his right to appeal ( see People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022; People v. Walsh, 243 A.D.2d 590, 665 N.Y.S.2d 514; People v. Korona, 197 A.D.2d 788, 790, 603 N.Y.S.2d 88). Consequently, appellate review of the factual sufficiency of his allocution to aggravated driving while intoxicated as a D felony is foreclosed ( see Vehicle and Traffic Law § 1193[1][c][ii]; People v. Budden, 77 A.D.3d 672, 908 N.Y.S.2d 362; People v. Bohannon, 63 A.D.3d 956, 880 N.Y.S.2d 533).

The defendant's challenge to the legality of his sentence on his conviction for aggravated unlicensed operation of a motor vehicle in the first degree, while not foreclosed by the waiver of his right to appeal and not subject to the preservation doctrine, is without merit ( see People v. Seaberg, 74 N.Y.2d at 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022; People v. Harris, 53 A.D.3d 1116, 861 N.Y.S.2d 880; People v. Figueroa, 17 A.D.3d 1130, 794 N.Y.S.2d 262).

The defendant's remaining contention, while also not foreclosed by the waiver of his right to appeal, is unpreserved for appellate review, and we decline to review it in the exercise of our interest of justice jurisdiction ( see People v. Taubenkraut, 48 A.D.3d 598, 849 N.Y.S.2d 896;

911 N.Y.S.2d 665

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