SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

766 

KA 11-01769 

PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

CHRISTIAN L. FLAGG, DEFENDANT-APPELLANT. 

(APPEAL NO. 1.)

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a resentence of the Erie County Court (Michael F.

Pietruszka, J.), rendered July 27, 2011. Defendant was resentenced

upon his conviction of driving while intoxicated, a misdemeanor, and

vehicular manslaughter in the second degree. 

It is hereby ORDERED that the resentence so appealed from is

unanimously modified on the law by vacating the term of probation

imposed on count four of the indictment and as modified the resentence

is affirmed. 

Memorandum: Defendant was convicted upon his plea of guilty of

vehicular manslaughter in the second degree (Penal Law § 125.12 [1])

and driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). 

In appeal No. 1, he appeals from a resentence that added a term of

probation with respect to each count requiring defendant to equip with

an ignition interlock device (IID) any vehicle owned or operated by

him. In appeal No. 2, defendant appeals from the judgment of

conviction.

As the People correctly concede in appeal No. 1, the resentence

is illegal insofar as County Court directed that defendant serve a

term of five years of probation following the indeterminate term of

imprisonment of 2 to 6 years on the conviction of vehicular

manslaughter in the second degree (see Penal Law § 60.01 [2] [d]). 

Contrary to defendant’s contention that the term of imprisonment

therefore must be reduced, however, we agree with the People that the

proper remedy is to vacate the term of probation imposed on the

vehicular manslaughter count. We therefore modify the resentence

accordingly. Section 60.21 requires a court to sentence a defendant

convicted of a violation of Vehicle and Traffic Law § 1192 (2), (2-a),

or (3) to a period of probation or conditional discharge and to order
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KA 11-01769 

the installation and maintenance of a functioning IID. Section 60.21

does not apply, however, to vehicular manslaughter in the second

degree (see Penal Law § 125.12; William C. Donnino, Practice

Commentary, McKinney’s Cons Laws of NY, Penal Law § 60.21; compare

Vehicle and Traffic Law § 1198 [2] [a]). 

Contrary to defendant’s contention in appeal No. 2, we conclude

that he knowingly, intelligently and voluntarily waived his right to

appeal as a condition of the plea (see generally People v Lopez, 6

NY3d 248, 256). The court “engage[d] the defendant in an adequate

colloquy to ensure that the waiver of the right to appeal was a

knowing and voluntary choice” (People v James, 71 AD3d 1465, 1465

[internal quotation marks omitted]), and the record establishes that

he “understood that the right to appeal is separate and distinct from

those rights automatically forfeited upon a plea of guilty” (Lopez, 6

NY3d at 256). That valid waiver forecloses any challenge by defendant

to the court’s suppression ruling (see People v Davis, 64 AD3d 1190,

1190, lv denied 13 NY3d 859), or to the severity of the sentence (see

People v Harris, 94 AD3d 1484, 1485, lv denied 19 NY3d 961; see

generally People v Lococo, 92 NY2d 825, 827). 

Entered: June 14, 2013 Frances E. Cafarell

Clerk of the Court