People v. Kontos

71 A.D.3d 507, 898 N.Y.S.2d 12

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 2010
• Status: Published

Opinion

Judgments, Supreme Court, New York County (Renee A. White, J., at dismissal motion; John Cataldo, J., at suppression hearing, plea and sentence), rendered August 13, 2008, convicting defendant of operating a motor vehicle while under the influence of alcohol (two counts), criminal possession of a forged instrument in the second degree and aggravated unlicensed operation of a motor vehicle in the first degree, and sentencing him, as a second felony offender, to an aggregate term of 2V2 to 5 years, unanimously affirmed.

The court properly denied defendant’s suppression motion. There is no basis for disturbing the court’s credibility determinations (see People v Prochilo, 41 NY2d 759, 761 [1977]). The record supports the court’s finding that the police properly stopped defendant’s car because he was illegally driving after dark with only his parking lights on.

By pleading guilty, defendant forfeited his right to appellate review of the court’s denial of his CPL 210.40 motion to dismiss the indictment in furtherance of justice (see e.g. People v Arvelo, 16 AD3d 128 [2005], lv denied 4 NY3d 883 [2005]). In any event, the motion was without merit, given the seriousness of both the present charges and defendant’s prior record.

The court properly denied defendant’s motion to withdraw his guilty plea after a suitable inquiry at which defendant received a sufficient opportunity to present his contentions (see People v Frederick, 45 NY2d 520 [1978]). The court properly relied on its recollection of the plea proceedings in rejecting defendant’s claim that the voluntariness of his plea was impaired by physical or mental distress (see People v Alexander, 97 NY2d 482 [2002]). Concur—Friedman, J.P., Catterson, McGuire, Acosta and Renwick, JJ.