People v Cruz-Mateo (2013 NY Slip Op 51131(U))

People v Cruz-Mateo (Omar)

2013 NY Slip Op 51131(U) [40 Misc 3d 131(A)]

Decided on July 8, 2013

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The People of the State of New York, Respondent, —

against

Omar Cruz-Mateo, Appellant.

Appeal, as limited by the brief, from a sentence of the Criminal Court of the City of New York, Kings County (William Miller, J.), imposed February 23, 2011, upon defendant's conviction of driving while ability impaired, upon his plea of guilty, on the ground that the sentence was excessive.

Insofar as is relevant to this appeal, defendant was charged with driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), common law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and making an unsafe lane change (Vehicle and Traffic Law § 1128 [a]). At a plea hearing at which he was represented by counsel, defendant entered into a negotiated conditional plea agreement pursuant to which he would plead guilty to driving while intoxicated per se and driving while ability impaired, but was promised that, upon his successful completion of a 90-day SCRAM ankle bracelet program, he would be permitted to withdraw his plea of guilty to the charge of driving while intoxicated per se, and he would be sentenced to a conditional discharge, a 90-day license suspension and a fine of $300 on the driving while impaired charge. After successfully completing the SCRAM program, defendant was permitted to withdraw his [*2]plea of guilty to the charge of driving while intoxicated per se, and the court imposed the agreed-upon sentence of a conditional discharge, a 90-day license suspension and a fine of $300.

On appeal, defendant seeks to have this court invoke its discretionary authority, in the interest of justice, to modify the sentence on the ground of excessiveness by vacating the fine of $300 and imposing, in place of the fine, a sentence of time served (see CPL 470.15 [6] [b]; People v Delgado, 80 NY2d 780, 783 [1992]).

The record reveals no extraordinary circumstances which warrant a reduction of the sentence (see People v Vega, 73 AD3d 1218 [2010]; People v Edwards, 37 AD3d 871, 872-873 [2007]). Defendant received precisely the sentence for which he bargained, obtained the benefits of the plea, and made no application to the Criminal Court to vacate his plea or to modify the sentencing terms (see People v Torres, 69 AD3d 886, 887 [2010]; People v Barnes, 32 Misc 3d 134[A], 2011 NY Slip Op 51454[U] [App Term, 9th & 10th Jud Dists 2011]). Under the circumstances presented, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]) and should not be disturbed.