State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 31, 2016 106598 

100599

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

STEVEN F. RUSHLOW JR.,

Appellant.

________________________________

Calendar Date: February 8, 2016

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

__________

Susan Patnode, Rural Law Center of New York, Castleton

(George J. Hoffman Jr. of counsel), for appellant.

Mary E. Rain, District Attorney, Canton (Ramy Louis of

counsel), for respondent.

__________

Clark, J.

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

County (Richards, J.), rendered December 16, 2013, convicting

defendant upon his pleas of guilty of the crimes of aggravated

driving while intoxicated and driving while intoxicated.

In June 2013, in satisfaction of a three-count indictment,

defendant pleaded guilty to aggravated driving while intoxicated

and waived his right to appeal, both orally and in writing. At

the time of his guilty plea, he was participating in a substance

abuse treatment program and was expected to continue to do so

while the criminal matter was pending. He was released to

probation supervision pending sentencing, which was set for
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September 2013. At that time, he was to be sentenced under the

terms of the plea agreement to six months in jail and five years

of probation. 

Prior to sentencing, however, defendant violated the

conditions of his probation release multiple times and he was

arrested for driving while intoxicated. He waived indictment

with respect to the new charge and agreed to be prosecuted by a

superior court information. Plea proceedings ensued during which

County Court advised defendant that, if he pleaded guilty to the

new crime, he would be sentenced to a prison term of 1a to 4

years that would run consecutively to the 1 to 3-year prison term

that the court was now going to impose on the aggravated driving

while intoxicated conviction. Defendant pleaded guilty to

driving while intoxicated and waived his right to appeal, both

orally and in writing. Thereafter, he was sentenced to

consecutive prison terms of 1 to 3 years on the aggravated

driving while intoxicated conviction and 1a to 4 years on the

driving while intoxicated conviction. He now appeals. 

Initially, we find that defendant's appeal waivers were

valid inasmuch as "County Court adequately explained the nature

of the rights that defendant was waiving, the appeal rights that

he could not waive, and that the right to appeal is separate and

distinct from the rights automatically forfeited upon a plea of

guilty" (People v Lyman, 119 AD3d 968, 969 [2014]; see People v

Lopez, 6 NY3d 248, 256-257 [2006]; People v Perkins, 125 AD3d

1045, 1047 [2015]). Thus, he is precluded from challenging the

respective sentences as harsh or excessive (see People v Rubio,

133 AD3d 1041, 1042 [2015]; People v Perkins, 125 AD3d at 1047). 

Defendant further argues that County Court erred in

imposing an enhanced sentence on the aggravated driving while

intoxicated conviction because he was not advised of the

potential consequences of his failure to comply with supervised

release conditions or that his arrest prior to sentencing would

subject him to an enhanced sentence. Although defendant's valid

appeal waiver does not foreclose him from raising this claim, it

has not been preserved for our review due to defendant's failure

to either object to the enhanced sentence or make a motion to
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withdraw his plea (see People v Bucknor, 116 AD3d 1233, 1234

[2014]; People v Stanley, 100 AD3d 1152, 1152-1153 [2012]). 

Nevertheless, despite the lack of preservation, we shall exercise

our interest of justice jurisdiction to take corrective action.

"A sentencing court may not impose an enhanced sentence

unless it has informed the defendant of specific conditions that

the defendant must abide by or risk such enhancement, or give the

defendant an opportunity to withdraw his or her plea before the

enhanced sentence is imposed" (People v Tole, 119 AD3d 982, 984

[2014]; see People v Lewis, 98 AD3d 1186, 1186 [2012]; People v

Lindsey, 80 AD3d 1005, 1006 [2011]). Here, the plea involving

the aggravated driving while intoxicated charge does not reveal

that County Court conditioned the sentencing commitment on

defendant's compliance with the terms of his probation

supervision release or that it gave him a Parker/Outley warning

advising him that his arrest pending sentencing could expose him

to an enhanced sentence. Given this failure, County Court had an

affirmative obligation to provide defendant with the opportunity

to withdraw his plea to the aggravated driving while intoxicated

charge once the court planned on imposing an enhanced sentence

(see People v Lewis, 98 AD3d at 1187; People v Bonacci, 52 AD3d

1189, 1189 [2008]). The record does not establish that the court

provided defendant with such an opportunity or otherwise

"demonstrate that defendant understood and knowingly waived the

right to withdraw his plea" (People v Lewis, 98 AD3d at 1187). 

Therefore, we vacate the sentence on the aggravated driving while

intoxicated charge and remit the matter to County Court to impose

the agreed-upon sentence or provide defendant with the option to

withdraw his plea to that charge (see People v Tole, 119 AD3d at

984; People v Stanley, 100 AD3d at 1153; People v Lewis, 98 AD3d

at 1187).

McCarthy, J.P., Egan Jr., Rose and Devine, JJ., concur.
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ORDERED that the judgment is modified, as a matter of

discretion in the interest of justice, by vacating the sentence

imposed on defendant's conviction of aggravated driving while

intoxicated; matter remitted to the County Court of St. Lawrence

County for further proceedings not inconsistent with this Court's

decision; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court