People v. Yushubyev (Lazar)

People v Yushubyev (2022 NY Slip Op 51386(U)) [*1] People v Yushubyev (Lazar) 2022 NY Slip Op 51386(U) [77 Misc 3d 141(A)] Decided on December 2, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on December 2, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ 2021-444 Q C The People of the State of New York, Respondent, against Lazar Yushubyev, Appellant. Zev Goldstein, for appellant. Queens County District Attorney (Johnnette Traill and Danielle O'Boyle of counsel), for respondent. Appeal from an order of the Criminal Court of the City of New York, Queens County (Eugene M. Guarino, J.), dated June 30, 2021. The order, after a hearing, denied defendant's motion to seal the record of a judgment convicting him of driving while intoxicated per se. ORDERED that the order is affirmed, without costs. In 2005, defendant was charged with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), disorderly conduct (Penal Law § 240.20 [5]), operating a motor vehicle without a license (Vehicle and Traffic Law § 509 [1]) and making an improper left turn (Vehicle and Traffic Law § 1160 [b]). On August 3, 2005, after defendant pleaded guilty to driving while intoxicated per se, the court sentenced defendant to a $750 fine, a conditional discharge and his driver's license was revoked. The remaining charges were dismissed. In January 2020, approximately 14 years after the judgment convicting defendant of driving while intoxicated per se had been rendered, he filed a motion seeking to have the record related to this conviction sealed pursuant to CPL 160.59. By order dated October 20, 2020, the [*2]court (Eugene M. Guarino, J.) determined that it did not appear that defendant's motion was subject to summary denial (see CPL 160.59 [3]). Thus, the court ordered that a hearing be held. After the hearing, the Criminal Court denied defendant's motion to seal the record of his judgment of conviction for driving while intoxicated per se. The court found that, on July 31, 2019, defendant was convicted of operating a motor vehicle without a driver's license, a traffic infraction [FN1] (Vehicle and Traffic Law § 509 [1]); that, on May 19, 2015, defendant was sentenced, upon a conviction, after a jury trial, of driving while ability impaired, a traffic infraction (Vehicle and Traffic Law § 1192 [1]); and that, on August 5, 2013, defendant was sentenced upon pleading guilty to a charge of loitering for the purpose of engaging in a prostitution, a violation (Penal Law § 240.37). In an order dated June 30, 2021, the court held that it should not determine the motion based on the hearing, but rather should have summarily denied the motion based on the fact that 10 years had not passed from the imposition of his three most recent sentences (see CPL 160.59 [3] [d]; [5]). CPL 160.59 directs that the court must summarily deny a defendant's motion to seal a conviction where, among other possibilities, 10 years have not passed since the imposition of the sentence on the defendant's "latest conviction" or release from incarceration (see CPL 160.59 [3] [d]; [5]; People v Coulibaly, 198 AD3d 84 [2021]). However, where a defendant's application to seal a record is not subject to mandatory denial (see CPL 160.59 [3]), the determination of the application rests within the discretion of the court pursuant to CPL 160.59 (4), (7). Here, although more than 10 years passed since August 3, 2005, when the sentence was imposed on the verdict convicting defendant of driving while intoxicated per se—the conviction defendant seeks to have sealed (see CPL 160.59 [3] [d]; [5])—it was less than 10 years since the imposition of the sentences on the convictions for the petty offenses (see CPL 1.20 [39]). Consequently, the Criminal Court's summary denial of the motion to seal the record was proper (see CPL 160.59 [3] [d]; [5]). Accordingly, the order denying defendant's motion to seal the record of his conviction of driving while intoxicated per se is affirmed. ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 2, 2022 Footnotes Footnote 1:The record before this court does not indicate a sentencing date for this conviction.