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The People of the State of v. Zoe A. Zimmerman

State of New York Supreme Court, Appellate Division Third Judicial Department


September 29, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ZOE A. ZIMMERMAN, APPELLANT.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered March 22, 2010, convicting defendant upon her plea of guilty of the crime of aggravated driving while intoxicated.

The opinion of the court was delivered by: Spain, J.

MEMORANDUM AND ORDER

Calendar Date: September 14, 2011

Before: Mercure, J.P., Spain, Malone Jr., Kavanagh and McCarthy, JJ.

Defendant was charged by indictment with aggravated driving while intoxicated and driving while intoxicated, both class D felony offenses. Following her arraignment, defendant was injured when she was hit by a bus and the proceedings were delayed for several months. Ultimately, pursuant to a negotiated plea agreement, defendant pleaded guilty to aggravated driving while intoxicated, with the understanding that she would be sentenced to 2 to 6 years in prison and would have to pay a fine in the amount of $2,000. Defendant was sentenced in accordance with the plea agreement and she now appeals.

Defendant's argument that her plea was not knowing, voluntary and intelligent is not preserved due to her failure to move to withdraw her plea or vacate the judgment of conviction (see People v Board, 75 AD3d 833, 833 [2010]; People v Bridge, 71 AD3d 1197, 1198 [2010]; People v Urbina, 1 AD3d 717, 717 [2003], lv denied 1 NY3d 602 [2004]). If we were to consider this argument, we would find it to be unavailing. The terms of the plea agreement were clearly set forth and County Court fully advised defendant of the rights she was giving up by pleading guilty, defendant acknowledged each of these rights and freely admitted her guilt (see People v Board, 75 AD3d at 834; People v Mosher, 45 AD3d 970, 970-971 [2007], lv denied 10 NY3d 814 [2008]).

Defendant's contention that she was deprived of the effective assistance of counsel is also unpreserved for review and, in any event, the record reflects that defendant was afforded meaningful representation (see People v Henkel, 37 AD3d 873, 873-874 [2007], lv denied 8 NY3d 985 [2007]; People v Nieves, 302 AD2d 625, 625-626 [2003], lv denied 100 NY2d 541 [2003]). Finally, we discern no abuse of discretion or extraordinary circumstances that warrant reduction of the agreed-upon sentence (see People v Bridge, 71 AD3d at 1199; People v Urbina, 1 AD3d at 718).

Mercure, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20110929

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