        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

766
KA 11-01769
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTIAN L. FLAGG, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Erie County Court (Michael F.
Pietruszka, J.), rendered July 27, 2011. Defendant was resentenced
upon his conviction of driving while intoxicated, a misdemeanor, and
vehicular manslaughter in the second degree.

     It is hereby ORDERED that the resentence so appealed from is
unanimously modified on the law by vacating the term of probation
imposed on count four of the indictment and as modified the resentence
is affirmed.

     Memorandum: Defendant was convicted upon his plea of guilty of
vehicular manslaughter in the second degree (Penal Law § 125.12 [1])
and driving while intoxicated (Vehicle and Traffic Law § 1192 [3]).
In appeal No. 1, he appeals from a resentence that added a term of
probation with respect to each count requiring defendant to equip with
an ignition interlock device (IID) any vehicle owned or operated by
him. In appeal No. 2, defendant appeals from the judgment of
conviction.

     As the People correctly concede in appeal No. 1, the resentence
is illegal insofar as County Court directed that defendant serve a
term of five years of probation following the indeterminate term of
imprisonment of 2 to 6 years on the conviction of vehicular
manslaughter in the second degree (see Penal Law § 60.01 [2] [d]).
Contrary to defendant’s contention that the term of imprisonment
therefore must be reduced, however, we agree with the People that the
proper remedy is to vacate the term of probation imposed on the
vehicular manslaughter count. We therefore modify the resentence
accordingly. Section 60.21 requires a court to sentence a defendant
convicted of a violation of Vehicle and Traffic Law § 1192 (2), (2-a),
or (3) to a period of probation or conditional discharge and to order
                                 -2-                          766
                                                        KA 11-01769

the installation and maintenance of a functioning IID. Section 60.21
does not apply, however, to vehicular manslaughter in the second
degree (see Penal Law § 125.12; William C. Donnino, Practice
Commentary, McKinney’s Cons Laws of NY, Penal Law § 60.21; compare
Vehicle and Traffic Law § 1198 [2] [a]).

     Contrary to defendant’s contention in appeal No. 2, we conclude
that he knowingly, intelligently and voluntarily waived his right to
appeal as a condition of the plea (see generally People v Lopez, 6
NY3d 248, 256). The court “engage[d] the defendant in an adequate
colloquy to ensure that the waiver of the right to appeal was a
knowing and voluntary choice” (People v James, 71 AD3d 1465, 1465
[internal quotation marks omitted]), and the record establishes that
he “understood that the right to appeal is separate and distinct from
those rights automatically forfeited upon a plea of guilty” (Lopez, 6
NY3d at 256). That valid waiver forecloses any challenge by defendant
to the court’s suppression ruling (see People v Davis, 64 AD3d 1190,
1190, lv denied 13 NY3d 859), or to the severity of the sentence (see
People v Harris, 94 AD3d 1484, 1485, lv denied 19 NY3d 961; see
generally People v Lococo, 92 NY2d 825, 827).




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
