BEARDSLEY, JR., DOUGLAS P., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
664
KA 13-00913
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, AND CARNI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DOUGLAS P. BEARDSLEY, JR., DEFENDANT-APPELLANT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.
DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (ANDREW M. MOLITOR OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Chautauqua County Court (John L.
LaMancuso, A.J.), rendered February 28, 2013. The judgment convicted
defendant, upon his plea of guilty, of driving while intoxicated, a
class E felony, and aggravated unlicensed operation of a motor vehicle
in the first degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of driving while intoxicated (Vehicle and Traffic Law
§§ 1192 [3]; 1193 [1] [c] [i]) and aggravated unlicensed operation of
a motor vehicle in the first degree (§ 511 [3] [a] [i]), both class E
felonies, defendant contends that the superior court information to
which he pleaded guilty was jurisdictionally defective because certain
misdemeanor offenses to which he also pleaded guilty were not properly
included therein. That contention is not before us on this appeal.
In the matter on appeal, defendant pleaded guilty to and was sentenced
on two felony charges in County Court. The plea minutes establish
that he contemporaneously pleaded guilty before the same judge,
apparently sitting as a local criminal court, to several misdemeanors
with which defendant was apparently charged in misdemeanor complaints
or informations that are not included in the record on appeal. “An
appeal from a judgment of conviction in a local criminal court lies
with County Court” (People v Brady, 263 AD2d 969, 969, citing CPL
450.60 [3]; see e.g. People v Eves, 35 AD3d 1181, 1182).
Defendant did not move to withdraw his plea or to vacate the
judgment of conviction and thus failed to preserve for our review his
contention that the plea to the charges in the superior court
information was not voluntarily entered (see People v Brinson, 130
AD3d 1493, 1493, lv denied 26 NY3d 965). This case does not fall
-2- 664
KA 13-00913
within the narrow exception to the preservation requirement set forth
in People v Lopez (71 NY2d 662, 666), because nothing in the plea
colloquy casts significant doubt on defendant’s guilt or the
voluntariness of the plea (see Brinson, 130 AD3d at 1493). Finally,
the sentence is not unduly harsh or severe.
Entered: September 30, 2016 Frances E. Cafarell
Clerk of the Court