People v. Gavidia

People v Gavidia (2017 NY Slip Op 04858)

People v Gavidia

2017 NY Slip Op 04858

Decided on June 14, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 14, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
JOHN M. LEVENTHAL
LEONARD B. AUSTIN
JEFFREY A. COHEN, JJ.

2015-09008
(Ind. No. 2896-14)

[*1]The People of the State of New York, respondent,

v

Jose Gavidia, appellant.

Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, NY (Marion M. Tang of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.), rendered May 1, 2015, convicting him of driving while intoxicated, aggravated unlicensed operation of a motor vehicle in the first degree (two counts), unauthorized use of a vehicle in the third degree, criminal possession of a controlled substance in the seventh degree, and operating a motor vehicle without an ignition interlock device, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that his plea of guilty was not knowing, voluntary, or intelligent because the County Court failed to properly advise him of all his constitutional rights under Boykin v Alabama (395 U.S. 238). Although this contention survives the defendant's valid waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10; People v Thomas, 148 AD3d 734; People v May, 138 AD3d 1146), it is unpreserved for appellate review, since the defendant failed to move to vacate his plea prior to the imposition of sentence or otherwise raise the issue in the County Court, although he had ample time to do so (see CPL 470.05[2]; People v Conceicao, 26 NY3d 375, 382; People v Thomas, 148 AD3d 734; People v Picart, 145 AD3d 742; People v Joseph, 142 AD3d 627, 628). We decline to review this issue in the exercise of our interest of justice jurisdiction (see People v Thomas, 148 AD3d 734).

RIVERA, J.P., LEVENTHAL, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court