Danielle Neroni Reilly, Albany, for appellant.
David Soares, District Attorney, Albany (Vincent Stark of
counsel), for respondent.
Before: Garry, P.J., McCarthy, Devine, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
from a judgment of the County Court of Albany County
(Herrick, J.), rendered May 19, 2015, convicting defendant
upon his plea of guilty of the crimes of aggravated
unlicensed operation of a motor vehicle in the first degree
and driving while intoxicated.
2014, defendant waived indictment and agreed to be prosecuted
pursuant to a superior court information (hereinafter SCI)
charging him with aggravated unlicensed operation of a motor
vehicle in the first degree and driving while intoxicated.
Thereafter, defendant waived his right to appeal and pleaded
guilty as charged in exchange for an agreed-upon aggregate
sentence of one year in the local jail. As part of the plea
defendant was required to comply with certain conditions,
including remaining free from additional arrests and charges,
or risk sentence enhancement. At sentencing, defendant
admitted to violating several plea agreement conditions and
was ultimately sentenced to an aggregate prison term of 1 to
3 years. Defendant now appeals.
affirm. Initially, we disagree with defendant's
contention that the SCI was jurisdictionally defective.
Specifically, defendant argues that the SCI failed to allege
all material elements of aggravated unlicensed operation of a
motor vehicle in the first degree and driving while
intoxicated inasmuch as the People did not state that the
crimes occurred on a public highway (see Vehicle and
Traffic Law §§ 511  [a]; 1192 , ;
People v Stewart, 92 A.D.3d 1146, 1147 ;
People v Beyer, 21 A.D.3d 592, 594 , lv
denied 6 N.Y.3d 752');">6 N.Y.3d 752 ). Although this claim
survives defendant's guilty plea and appeal waiver
(see People v Guerrero, 28 N.Y.3d 110, 116 ;
People v Place, 50 A.D.3d 1313, 1314 , lv
denied 11 N.Y.3d 740');">11 N.Y.3d 740 ), no defect exists when the
SCI incorporates elements by specific reference to the
crimes' statutory authority because such incorporation
"constitute[s] allegations of all the elements of the
crime" (People v D'Angelo, 98 N.Y.2d 733,
735 ; see People v Brothers, 123 A.D.3d 1240,
1240-1241 ), while also giving the defendant "fair
notice of the charges made against him [or her]"
(People v Ray, 71 N.Y.2d 849, 850  [internal
quotation marks and citation omitted]; see People v
Binns, 82 A.D.3d 1449, 1450 ). Here, although the
SCI failed to state specifically where defendant was driving
and whether that location was in fact a public highway, it
expressly referenced Vehicle and Traffic Law §§ 511
(3) (a) and 1192 (2) and made no other affirmative statement
of facts that would negate the statutory references
(compare People v Boula, 106 A.D.3d 1371, 1372
, lv denied 21 N.Y.3d 1040');">21 N.Y.3d 1040 ). As such,
we find that the SCI effectively charged defendant with the
commission of the subject crimes (see People v
Brothers, 123 A.D.3d at 1240-1241; compare People v
Stewart, 92 A.D.3d at 1147).
defendant argues that County Court erred in imposing an
enhanced sentence. Although this issue is not precluded by
the express terms of defendant's appeal waiver, it is
unpreserved inasmuch as he failed to object to the enhanced
sentence or make any appropriate motion (see People v
Bennett, 143 A.D.3d 1008, 1009 ; People v
Tole, 119 A.D.3d 982, 983-984 ). Were we to
address the issue, we would find that the court did not err
in imposing the enhanced sentence under the circumstances
presented because, when defendant was provided sufficient
opportunity to dispute the alleged plea agreement violations
(see People v Valencia, 3 N.Y.3d 714, 715 ),
he readily admitted to the proscribed conduct (see People
v Woods, 150 A.D.3d 1560, 1561 , lv
denied 29 N.Y.3d 1095');">29 N.Y.3d 1095 ; People v Davis,
30 A.D.3d 893, 895 , lv denied 7 N.Y.3d 847');">7 N.Y.3d 847
; People v Therrien, 301 A.D.2d 751, 752
, lv denied 99 N.Y.2d 633');">99 N.Y.2d 633 ).
also challenges the severity of the enhanced sentence.
Although the express terms of defendant's appeal waiver
again permit him to bring such a challenge, we are not
persuaded that the enhanced sentence, which was less than the
maximum permissible sentence (see Vehicle and
Traffic Law § 511  [b]; Penal Law § 70.00 
[e]), was either harsh or excessive given defendant's
extensive criminal history and his continued criminal
activity after entering his guilty plea. Accordingly, we find
no extraordinary circumstances or any abuse of discretion
warranting a reduction of the enhanced sentence in the
interest of justice (see People v Galagan, 85 A.D.3d
1490, 1491 ; People v Thomas, 56 A.D.3d 815,
816 ; People v Scott, 196 A.D.2d 921, 921
P.J., McCarthy, Devine and ...