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

144
KA 11-00096
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN ROCKWELL, DEFENDANT-APPELLANT.


LAW OFFICES OF JOSEPH D. WALDORF, P.C., ROCHESTER (JOSEPH D. WALDORF
OF COUNSEL), FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Dennis S.
Cohen, J.), rendered December 16, 2010. The judgment convicted
defendant, upon his plea of guilty, of aggravated driving while
intoxicated.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by vacating the sentence, and as modified the
judgment is affirmed and the matter is remitted to Livingston County
Court for further proceedings in accordance with the following
memorandum: On appeal from a judgment convicting him upon his plea of
guilty of aggravated driving while intoxicated ([DWI] Vehicle and
Traffic Law § 1192 [2-a] [a]), defendant contends that he was coerced
into pleading guilty by County Court, including the court’s statement
that, if he did not plead guilty at his first appearance with counsel,
he would forfeit a prior plea offer that did not include incarceration
in a state prison. Defendant did not move to withdraw his plea or to
vacate the judgment, and he thus failed to preserve that contention
for our review (see People v Boyd, 101 AD3d 1683, 1683; see generally
People v Ali, 96 NY2d 840, 841).

      Defendant also failed to preserve for our review his contention
that he was not able to understand the plea proceedings due to his
hearing impairment, and, in any event, that contention is belied by
the plea proceedings, in which defendant responded appropriately to
all of the court’s questions (see generally People v Ribeiro, 245 AD2d
804, 804, lv denied 91 NY2d 976; People v Robinson, 156 AD2d 598,
598).

     Defendant further contends that he was denied effective
assistance of counsel because defense counsel sought an adjournment to
allow her to discuss the earlier plea offer with defendant, thereby
                                 -2-                           144
                                                         KA 11-00096

depriving him of a plea offer that was subsequently withdrawn. Even
assuming, arguendo, that defendant’s contention survives his guilty
plea (cf. People v Abdulla, 98 AD3d 1253, 1254, lv denied 20 NY3d
985), we conclude that it lacks merit (see generally People v Ford, 86
NY2d 397, 404).

     Finally, although defendant failed to preserve for our review his
contention that the court erred in imposing a fine (see CPL 470.05
[2]), we exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). As
the People correctly concede, the court erred in imposing the fine
without affording defendant an opportunity to withdraw the plea
because the fine was not mentioned at the time of the plea (see People
v Barber, 31 AD3d 1145, 1146). “Because defendant was denied the
benefit of his plea bargain, we modify the judgment by vacating the
sentence, and we remit the matter to County Court to impose the
sentence promised . . . or to afford defendant the opportunity to
withdraw his plea” (People v Lafferty, 60 AD3d 1318, 1319).




Entered:   March 18, 2016                      Frances E. Cafarell
                                               Clerk of the Court
