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

550
KA 11-01642
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT E. BADDING, JR., DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JESSAMINE I. JACKSON
OF COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered July 14, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree and driving while ability impaired.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence imposed for
driving while ability impaired under the third count of the indictment
and as modified the judgment is affirmed, and the matter is remitted
to Erie County Court for resentencing on that count.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]) and driving while ability
impaired (Vehicle and Traffic Law § 1192 [1]). At the outset, we note
that the certificate of conviction incorrectly reflects that defendant
was convicted of driving while intoxicated, and it must therefore be
amended to reflect that he was convicted of driving while ability
impaired (see People v Saxton, 32 AD3d 1286, 1286-1287).

     Contrary to defendant’s contention, the record establishes that
the waiver of the right to appeal was made knowingly, intelligently
and voluntarily (see People v Zimmerman, 100 AD3d 1360, 1361, lv
denied 20 NY3d 1015; see generally People v Lopez, 6 NY3d 248, 256).
Additionally, defendant waived the right to raise his contention with
respect to suppression on appeal inasmuch as he pleaded guilty before
County Court issued its suppression ruling (see People v Lewandowski,
82 AD3d 1602, 1602; People v Taylor, 43 AD3d 1400, 1400-1401, lv
denied 9 NY3d 1039). Defendant’s further contention that he was
denied his statutory right to a speedy trial is foreclosed by his
guilty plea (see People v Hansen, 95 NY2d 227, 231 n 3; People v
Paduano, 84 AD3d 1730, 1730; People v Faro, 83 AD3d 1569, 1569, lv
                                 -2-                           550
                                                         KA 11-01642

denied 17 NY3d 858) and, in any event, does not survive the valid
waiver of the right to appeal (see Paduano, 84 AD3d at 1730).

     As the People correctly concede, however, the sentence imposed
for driving while ability impaired is illegal. The court indicated at
sentencing that defendant was convicted of driving while intoxicated
and sentenced him for that misdemeanor offense, but defendant actually
pleaded guilty to driving while ability impaired, which is a traffic
infraction (see Vehicle and Traffic Law § 1193 [1]). We therefore
modify the judgment by vacating the sentence imposed for driving while
ability impaired under the third count of the indictment, and we remit
the matter to County Court for resentencing on that count.




Entered:   June 7, 2013                         Frances E. Cafarell
                                                Clerk of the Court
