On April 26, 2007, the defendant was arrested and charged with Driving While Intoxicated [Vehicle & Traffic Law § 1192(2) and (3)], Disobeying a Traffic Control Device [Vehicle & Traffic Law § 1110(a)] and Driving the Wrong Way on a Traffic Circle [Vehicle & Traffic Law § 1127(b)].

On May 1, 2007, the Defendant appeared in this Court, with his attorney, Randy Parker, Esq., before Hon. Richard P. Tarantino, for his initial arraignment.^[FN1] At his arraignment, Judge Tarantino obtained certain pedigree information directly from the defendant, including the defendant's name, address, phone number, date of birth and employment information. Mr. Parker then waived a formal reading of the defendant's charges, and indicated that he had obtained a negotiated plea bargain offer from the District Attorney's Office and that the offer was acceptable to Mr. Riggins.

On the record, with his client present in court, Mr. Parker recited the terms of the plea offer, which offered the defendant to plea guilty to a reduced charge of Driving While Ability Impaired [Vehicle & Traffic Law § 1192(1)], a violation and not a crime, in full satisfaction for all pending charges. Mr. Parker further recited the proposed sentence, which included a one-year conditional discharge requiring the defendant to remain arrest and conviction free, to pay a $500.00 fine and a $75.00 mandatory surcharge, and the defendant's driver's license would be suspended for ninety (90) days. Mr. Parker indicated that his client desired a twenty (20) day stay of the license suspension to allow Mr. Riggins to enroll in the Department of Motor Vehicle's Drinking Driver program, because Mr. Riggins needed a conditional license as he [*2]drove for a living. The plea agreement also required the defendant to participate in the one-day Victim Impact Panel.

Prior to accepting the plea from the defendant, Judge Tarantino questioned the defendant to insure that Mr. Riggins understood the proposed plea and the sentence. The judge explained, in detail, the terms of the plea agreement and the proposed sentence, which Judge Tarantino indicated that he intended to accept. The judge questioned the defendant regarding whether the defendant wanted to accept the plea agreement, and the defendant assured Judge Tarantino that he did desire to accept the plea offer. Judge Tarantino then asked Mr. Riggins, in front of his attorney, how he plead to the reduced charge of Driving While Ability Impaired in violation of § 1192(1) of the Vehicle and Traffic Law, in full satisfaction of all of the remaining charges. The defendant indicated that he plead guilty to the reduced charge. The judge then accepted the defendant's guilty plea as being knowingly and voluntarily made on the advice and counsel of his attorney. The court then imposed the agreed upon sentence.

The defendant now moves to vacate his guilty plea on the grounds that the defendant's plea was obtained in violation of his constitutional rights. More specifically, the defendant asserts that the record of the defendant's plea fails to demonstrated that the defendant understood his constitutional rights, that he voluntarily waived his constitutional rights or that he discussed the consequences of pleading guilty to the reduced charge of Driving While Ability Impaired with his attorney. The People oppose the motion on the grounds that the record, when reviewed in its entirety, demonstrates that the defendant entered a knowing and voluntary guilty plea.

It is well settled that a guilty plea will be upheld if "it was entered voluntarily, knowingly and intelligently." People v Haffiz, 19 NY3d 883, 884 (2012)(internal quotation marks and citation omitted). When a defendant opts to plead guilty, he must waive certain constitutional rights, including the privilege against self-incrimination, the right to a jury trial and the right to confront the People's witnesses. People v Tyrell, 22 NY3d 359, 365�66 (2013), citing, Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The record must show, or there must be an allegation and evidence which demonstrates, that the accused intelligently and understandingly rejected his constitutional rights. Anything less is not a valid waiver. People v Tyrell, 22 NY3d 359, 366 (2013).

However, the Court of Appeals has repeatedly rejected a formalistic approach to the method of obtaining a guilty plea from a defendant, and that Court has "steered clear of a uniform mandatory catechism of pleading defendants in favor of broad discretions controlled by flexible standards." People v Tyrell, 22 NY3d 359, 365�66 (2013), citing, People v Alexander, 19 NY3d 203, 219 (2012). A guilty plea will not be invalidated "solely because the Trial Judge failed to specifically enumerate all the rights to which the defendant was entitled and to elicit from him or her a list of detailed waivers before accepting the guilty plea." People v Tyrell, 22 NY3d 359, 365�66 (2013), citing, People v Harris, 61 NY2d 9, 16 (1983).

Instead, a valid waiver can be established where the record, as a whole, shows that the [*3]defendant consulted with his attorney about the constitutional consequences of a guilty plea, and then entered a knowing and voluntary plea. People v Tyrell, 22 NY3d 359, 365�66 (2013), citing, North Carolina v Alford, 400 US 25, 29 (1970); Hanson v Phillips, 442 F3d 789, 801 (2d Cir 2006).

When faced with a Boykin challenge to a prior plea, the court must search the record to determine, under the totality of the circumstances, whether the defendant made a knowing, voluntary and intelligent plea, including "an affirmative showing on the record" that the defendant waived his constitutional rights. People v Fiumefreddo, 82 NY2d 536, 543 (1993). See also: Boykin, 395 US at 242 [requiring an "affirmative showing" that the guilty plea was "intelligent and voluntary"]; People v. Harris, 61 NY2d 9, 17 (1983)("To be sure, the record must show an intentional relinquishment or abandonment of a known right or privilege."). A record that is "silent will not overcome the presumption against waiver by a defendant of constitutionally guaranteed protections." Harris, supra at 17.

In People v Conceicao, 26 NY3d 375 (2015), the Court of Appeals explained that, in reviewing a Boykin challenge to a prior guilty plea, "we have opted for a flexible rule that considers all of the relevant circumstances surrounding a plea." Conceicao, at 383, citing, People v. Harris, 61 NY2d 9, 19, 471 N.Y.S.2d 61, 459 N.E.2d 170. The Court of Appeals held that, among other factors, the reviewing court must evaluate "[t]he seriousness of the crime, the competency, experience and actual participation by counsel, the rationality of the plea bargain', ... the pace of the proceedings in the particular criminal court" and whether the defendant consulted with his attorney about the constitutional consequences of the plea. Id. at 382-383, citing, Harris at 16, 471 N.Y.S.2d 61, 459 N.E.2d 170. So long as the record, as a whole, affirmatively discloses that a defendant who plead guilty entered his plea understandingly and voluntarily, then the plea will be upheld. Id. at 382-383, citing, Harris at 19.

In the present case, the record taken as a whole does support the conclusion that the defendant knowingly, voluntarily and intelligently entered his guilty plea to the reduced charge of Driving While Ability Impaired. Here, the defendant entered a plea of guilty to a violation, not a crime. While a charge of Driving While Ability Impaired is a serious offense, it is not as serious as a plea to a misdemeanor of Driving While Intoxicated, which is a predicate to a possible subsequent felony. See: People v Conceicao, 26 NY3d 375, 384 (2015). Moreover, the defendant was represented by competent legal counsel, who was well known to this Court and Judge Tarantino. Prior to proceeding with any discussion of a plea offer, Judge Tarantino questioned the defendant about his pedigree to determine whether the defendant was able to comprehend and answer questions posed to the defendant. Mr. Riggins easily answered Judge Tarantino's questions, without any difficulty, and even corrected Judge Tarantino concerning the name of his employer.

The defendant's attorney, Randy Parker, then recited the plea offer and proposed sentence in detail on the record with his client present. Mr. Parker indicated, in his client's presence, that Mr. Riggins wanted to accept the proposed plea offer. Contrary to the defendant's present [*4]assertion, the record does demonstrate that Mr. Riggins discussed the plea offer and the consequences of the defendant's guilty plea with his attorney. Here, Mr. Parker stated that Mr. Riggins wanted the 20 day stay of the license suspension, because he needed a conditional driver's license as Mr. Riggins needed to drive for his employment. Mr. Parker could not have known the defendant's need for a conditional driver's license for his employment, unless he had discussed the proposed plea and sentence with his client.

After Mr. Parker recited the terms of the plea agreement and proposed sentence on the record to the defendant, Judge Tarantino again recited, in detail, the terms of the proposed plea and the proposed sentence to Mr. Riggins, and asked the defendant if he understood the proposed plea and sentence. Mr. Riggins assured this Court that he did understand the proposed plea and sentence. Judge Tarantino then recited the reduced charged of Driving While Ability Impaired in violation of section 1192(1) and asked Mr. Riggins how he plead to that reduced charge. Mr. Riggins, with his attorney present, then stated that he plead "guilty" to the reduced charge.

The rationality of the plea bargain also supports the defendant's decision to accept the plea agreement. According to this Court's records, the defendant was observed by Officer French to be driving the wrong way on a traffic circle and failed to keep right. After he was stopped by Officer French, the defendant was observed with an odor of alcoholic beverages and glassy eyes. Once outside of the vehicle, the defendant was observed to be swaying and staggering. Mr. Riggins then failed certain field tests, including the gaze nystagmus, one leg stand, finger to nose, and reciting of the alphabet. The defendant admitted to having consumed alcoholic beverages before he drove. The defendant's breath test showed a .11% BAC. Based on these facts, the proposed plea offer was a rational offer for the defendant to accept.

While the defendant's plea allocution could have been more robust, the totality of the record establishes a knowing, intelligent, and voluntary plea and waiver of the defendant's constitutional rights. See: People v Rosa, 135 AD3d 434, 435 (1st Dept. 2016), lv to appeal denied, 27 NY3d 968 (2016). Based on the foregoing, the defendant's motion to vacate his plea is hereby denied.