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People v. Safran

Supreme Court of New York, Second Department

January 29, 2014

The People of the State of New York, respondent,
v.
David J. Safran, appellant. Ind. No. 388B-11

David J. Safran, Albion, N.Y., appellant pro se.

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

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, SHERI S. ROMAN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Cohen, J.), rendered September 20, 2011, convicting him of criminal possession of a forged instrument in the second degree (24 counts) and resisting arrest, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was arrested when he was found to be in possession of a large quantity of fraudulent temporary motor vehicle registration tags. The defendant contends that the People should have prosecuted him for violation of Vehicle and Traffic Law § 403-a, which provides that falsifying any temporary indicia of registration shall be a traffic infraction, rather than criminal possession of a forged instrument in the second degree. The defendant's claim is without merit. When two or more statutes make punishable the same conduct, it is generally left to the People, in their discretion, to choose which offense to charge (see People v Walsh, 67 N.Y.2d 747, 749; People v Eboli, 34 N.Y.2d 281, 287-290). "[T]he existence of a statutory prohibition against a particular type of conduct... will not be deemed to constitute the exclusive vehicle for prosecuting that conduct unless the Legislature clearly intended such a result" (People v Mattocks, 12 N.Y.3d 326, 333 [internal quotation marks omitted]). Since there is no showing that the Legislature, in enacting Vehicle and Traffic Law § 403-a, intended to foreclose or limit the prosecution of the falsification of temporary indicia of registration to only that charge, the People acted within their discretion in charging the defendant with criminal possession of a forged instrument in the second degree

The defendant claims that his plea of guilty was not knowing and voluntary. "Whether a plea was knowing, intelligent and voluntary is dependent upon a number of factors including the nature and terms of the agreement, the reasonableness of the bargain, and the age and experience of the accused'" (People v Garcia, 92 N.Y.2d 869, 870, quoting People v Hidalgo, 91 N.Y.2d 733, 736). Here, the defendant, who had the assistance of a legal advisor, and who had an extensive criminal history, knowingly and voluntarily admitted his guilt after a thorough and complete plea allocution. The defendant indicated that he was entering the plea "voluntarily, " stated that no one had forced or coerced him to enter the plea of guilty, and averred that he was guilty of the subject crimes. Further, the defendant was fully apprised of the consequences of his plea, i.e., that his plea of guilty would be considered a conviction, and that if he were ever convicted of another felony, he would be subject to an enhanced sentence. In addition, the defendant offered his plea after he was advised by the court of his rights to trial by jury or to a bench trial, to confront and cross-examine adverse witnesses, to present witnesses on his own behalf, to remain silent, and to be proven guilty beyond a reasonable doubt. Accordingly, contrary to the defendant's contention, his plea of guilty was knowingly, voluntarily, and intelligently entered (see People v Fiumefreddo, 82 N.Y.2d 536, 543; People v Figueroa, 100 A.D.3d 1016).

The defendant's remaining contentions are without merit.

BALKIN, J.P., CHAMBERS, AUSTIN and ROMAN, JJ., concur.


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