SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts
December 10, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from an order of the Justice Court of the Town of Tuxedo, Orange County (Shawn M. Brown, J.), dated January 6, 2011.
People v Grubstein (Howard)
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: NICOLAI, P.J., IANNACCI and LaSALLE, JJ
The order granted defendant's motion to vacate a judgment convicting defendant, upon his plea of guilty, of driving while intoxicated.
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 ), 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 ). 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 (see Vehicle and Traffic Law § 1193  [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 possible avenue of review was a direct
appeal (see CPL 440.10  [c]; People v Cooks, 67 NY2d 100 ;
see generally People v Anthony, 14 Misc 3d 54 [App Term, 9th
& 10th Jud Dists 2006]). We note that, in discussing the procedural bar mandated by CPL 440.10 (2) (c), the Court of Appeals
has underscored that, "[t]here are obvious good reasons for the Legislature's choice to require that jurisdictional, as well as other,
defects that can be raised on direct appeal be raised in that way or not at all" (People v Cuadrado, 9 NY3d 362, 365 ).
To the extent that defendant's claims are based on matters dehors the record, his motion failed to assert matters of fact sufficient to require
a hearing (see CPL 440.30 ).
Accordingly, the order is reversed and defendant's motion to vacate the judgment of conviction is denied.
Nicolai, P.J., Iannacci and LaSalle, JJ., concur. Decision Date: December 10, 2012
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