State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 30, 2015 106104 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

GREGORY CARR,

Appellant.

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Calendar Date: March 23, 2015

Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

__________

Albert F. Lawrence, Greenfield Center, for appellant.

Mary E. Rain, District Attorney, Canton (Patricia C.

Campbell, Syracuse, of counsel), for respondent.

__________

Clark, J.

Appeal from a judgment of the County Court of St. Lawrence

County (Richards, J.), rendered May 14, 2013, convicting

defendant upon his plea of guilty of the crime of driving while

intoxicated.

Pursuant to a plea agreement, defendant waived indictment

and entered a guilty plea to a superior court instrument charge

of driving while intoxicated, a class E felony based upon his

prior conviction for driving while intoxicated (see Vehicle and

Traffic Law §§ 1192 [3]; 1193 [1] [c]), and waived his right to

appeal. County Court indicated that it intended to follow the

sentencing recommendation of the Probation Department but agreed

that, if defendant abided by the terms of his release – including

successfully completing substance abuse treatment, continuing to
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test negative for prohibited substances, and refraining from

consuming alcohol or illegal substances – no prison time would be

imposed. Defendant was released on supervision in order to

complete treatment, but that release was later revoked after

defendant had a positive chemical test and admitted consuming

alcohol on two occasions. The court thereafter imposed a prison

sentence of 15 to 45 months and a period of conditional discharge

with the condition, among others, that an ignition interlock

device be installed in any vehicle owned or operated by him. 

Defendant appeals. 

We affirm. On appeal, defendant argues, for the first

time, that his guilty plea was not voluntary in that he was not

specifically advised during the plea allocution that a period of

conditional discharge would be imposed. The Legislature has

mandated that "[i]n addition to the imposition of any fine or

period of imprisonment . . ., the court shall also sentence such

person convicted of [driving while intoxicated] to a period of

probation or conditional discharge," with a condition requiring

an ignition interlock device in any vehicle owned or operated by

that person (Vehicle and Traffic Law § 1193 [1] [c] [iii]; see

Penal Law § 60.21; accord People v Brainard, 111 AD3d 1162, 1164

[2013]; see People v O'Brien, 111 AD3d 1028, 1029 [2013]). While

defendant's challenge to his guilty plea as involuntary survives

the uncontested appeal waiver, it was not preserved for our

review by a specific objection on the grounds now raised or by a

postallocution motion to withdraw his guilty plea (see People v

Tyrell, 22 NY3d 359, 363-364 [2013]; People v Griffin, 117 AD3d

1339, 1339 [2014]), and the narrow exception to the preservation

requirement was not implicated as defendant made no statements

calling into doubt the voluntariness of his plea (see People v

Tyrell, 22 NY3d at 364; People v Lopez, 71 NY2d 662, 666-667

[1988]). 

Furthermore, the record reflects that defendant was advised

during the plea proceedings that he faced a potential period of

imprisonment and he was made aware of the requirement that he

would be subject to an ignition interlock condition, "which is

only effectuated through either the imposition of a period of

probation or conditional discharge" (People v Griffin, 117 AD3d

at 1339). At sentencing, defense counsel unsuccessfully objected
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to the imposition of a period of conditional discharge solely on

the ground that it constituted a multiple penalty, an argument

this Court has since rejected (see People v Brainard, 111 AD3d at

1163). Thus, because defendant had knowledge of a period of

conditional discharge at sentencing, we conclude that the

exception to the preservation doctrine does not apply (see People

v Peque, 22 NY3d 168, 182-183 [2013], cert denied ___ US ___, 135

S Ct 90 [2014]; People v Murray, 15 NY3d 725, 726-727 [2010];

compare People v Louree, 8 NY3d 541, 546 [2007]) and, therefore,

this argument is not preserved for our review. Under the

circumstances, we decline to take corrective action in the

interest of justice (see CPL 470.15 [6] [a]).

McCarthy, J.P., Egan Jr. and Devine, JJ., concur.

ORDERED that the judgment is affirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court