People v. Vanbuskirk , 3 N.Y.S.3d 648 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 26, 2015 106303
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
ERIC J. VANBUSKIRK,
Appellant.
________________________________
Calendar Date: February 20, 2015
Before: Lahtinen, J.P., Garry, Rose and Devine, JJ.
__________
Tabner Ryan & Keniry, LLP, Albany (Brian M. Quinn of
counsel), for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Ann C.
Sullivan of counsel), for respondent.
__________
Rose, J.
Appeal from a judgment of the County Court of Saratoga
County (Scarano, J.), rendered August 5, 2013, convicting
defendant upon his plea of guilty of the crime of driving while
intoxicated.
Defendant waived indictment and agreed to be prosecuted by
a superior court instrument charging him with driving while
intoxicated as a felony (see Vehicle and Traffic Law § 1192
[3]).1 Pursuant to a plea agreement, defendant pleaded guilty to
1
An information setting forth defendant's prior conviction
in 2006 under the same statutory subdivision for driving while
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that charge and waived his right to appeal, both orally and in
writing. Consistent with the plea agreement, County Court
sentenced defendant to a prison term of 1 to 3 years, followed by
a three-year conditional discharge with ignition interlock
conditions. Defendant appeals.
We affirm. Contrary to defendant's contention on appeal,
he was clearly informed during the plea colloquy and in the
written appeal waiver that the plea agreement included a
consecutive three-year period of conditional discharge with
ignition interlock conditions (see People v Griffin, 117 AD3d
1339, 1339 [2014]). Where, as here, a person is convicted under
Vehicle and Traffic Law § 1192 (3), a sentencing court is
required to impose a period of probation or conditional discharge
consecutive to any period of imprisonment and "shall order the
installation and maintenance of a functioning ignition interlock
device" (Penal Law § 60.21; see Vehicle and Traffic Law §§ 1193
[1] [c] [iii]; 1198 [2], [5]; People v Barkley, 113 AD3d 1002,
1002-1003 [2014]; People v Brainard, 111 AD3d 1162, 1164 [2013]).
Defendant's claim that consideration should have been given to
his ability to pay for the installation of this device was not
raised at or before sentencing, and the record does not reflect
that he made a postallocution motion to withdraw his plea on this
ground or an application for resentencing (see CPL 420.10 [5]).
As such, the issue is unpreserved for our review (see CPL 470.05
[2]; People v Lazore, 102 AD3d 1017, 1017-1018 [2013]), as is
defendant's challenge to the presentence report (see People v
Lazore, 102 AD3d at 1017-1018; People v Ruff, 50 AD3d 1167, 1168
[2008]).
Lahtinen, J.P., Garry and Devine, JJ., concur.
intoxicated was filed with the superior court instrument, which
defendant admitted, satisfying the statutory prerequisite to
charge him with driving while intoxicated as a felony (see
Vehicle and Traffic Law § 1193 [c] [i]).
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ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court