| People v Zhu (Vincent) |
| 2015 NY Slip Op 50465(U) [47 Misc 3d 133(A)] |
| Decided on April 3, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal by defendant (1), as limited by his brief, from a sentence of the District Court of Suffolk County, Sixth District (Janine A. Barbera-Dalli, J.), imposed January 31, 2013, upon his conviction of violating section 82-10 of the Code of the Town of Brookhaven, upon his plea of guilty, and (2) from a judgment of the same court rendered January 31, 2013 convicting defendant, upon his plea of guilty, of violating section 82-3 (D) of the Code of the Town of Brookhaven.
ORDERED that the sentence and the judgment of conviction are affirmed.
On January 8, 2013, the People charged defendant, in separate informations, with violating two provisions of the Code of the Town of Brookhaven (Code)—renting a dwelling without having obtained a rent registration certificate (Code § 82-10) and violating preservation requirements by parking a vehicle on the front lawn of a residential premises (Code § 82-3 [D]). On January 31, 2013, pursuant to a plea and sentencing agreement, defendant, appearing pro se, pleaded guilty to both charges and was sentenced to a $1,500 fine on the first conviction and to a $500 fine on the second. Defendant appeals, as limited by his brief, from the sentence imposed on the conviction of violating Code § 82-10, alleging that the $1,500 fine was discriminatory given that, according to defendant, the usual fine for a first offender is the $500 minimum sentence, and that, in any event, it is excessive given the nature of the offense. Defendant also appeals from the judgment convicting him of violating Code § 82-3 (D), arguing that he could not legally be charged with that violation.
As a general rule, a defendant who has been sentenced according to the terms of a bargained-for plea and sentencing agreement will not be heard to complain that the sentence is unduly harsh or excessive (see People v Galvez, 72 AD3d 838 [2010]; People v Ubiles, 59 AD3d 572 [2009]; People v Anant, 44 Misc 3d 138[A], 2014 NY Slip Op 51252[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; People v Barnes, 32 Misc 3d 134[A], 2011 NY Slip Op 51454[U] [App Term, 9th & 10th Jud Dists 2011]), particularly where, by virtue of the plea, the defendant obtains a sentence that is significantly lower than the potential maximum (e.g. People v Torres, 81 AD3d 995 [2011]). Further, where, as here, a defendant's appeal is directed to an appellate court's "broad, plenary power" to modify sentences (People v Delgado, 80 NY2d 780, 783 [1992]), such relief is appropriate only upon a showing "that extraordinary circumstances exist warranting such relief" (Barnes, 32 Misc 3d 134[A], 2011 NY Slip Op 51454[U], *1; e.g. People v Vega, 73 AD3d 1218, 1219 [2010]; People v Santos, 43 Misc 3d 141[A], 2014 NY Slip Op [*2]50831[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2014]). Defendant does not dispute that the $1,500 sentence was less than a third of the maximum provided by law, and his assertion that the sentence is three times the usual sentence for first offenders and was therefore necessarily discriminatory is without support in the record, nor do we perceive any other basis for a finding that the fine was excessive.
As for the second conviction, normally, claims that a guilty plea was not knowingly, intelligently or voluntarily entered must be asserted via a timely motion to withdraw the plea (People v Lopez, 71 NY2d 662, 665 [1988]), and defendant's claim, in effect, that his plea was not intelligently entered because he was unaware he could not legally be charged with the offense, does not survive that preservation failure because nothing said in his plea allocution casts doubt upon his guilt or negated an essential element of the offense (People v Deal, 115 AD3d 975, 976 [2014]). Indeed, the factual portion of the accusatory instrument, tracking the statutory language, did not allege that defendant owned or had parked the offending vehicle, only that a particular vehicle had been observed illegally parked at premises owned by defendant, and, by his plea, defendant admitted that such was the case. In any event, on its face, the ordinance does not require proof of a property owner's intent to park a vehicle on the front lawn of his or her property, or knowledge that an illegal parking had occurred. The offense occurs when a vehicle is illegally parked, and defendant has never denied the fact that a car had been illegally parked on his property.
Accordingly, the sentence and the judgment of conviction are affirmed.
Tolbert, J.P., Marano and Garguilo, JJ., concur.