People v. Chunicarchi (Jose)

The People of the State of New York, Respondent, against Jose Chunicarchi, Appellant. New York City Legal Aid Society (Joanne Legano Ross of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill and Danielle S. Fenn of counsel), for respondent. Appeal by defendant, as limited by his brief, from a sentence of the Criminal Court of the City of New York, Queens County (John F. Zoll, J.), imposed March 10, 2016, upon his conviction of disorderly conduct, upon his plea of guilty. ORDERED that the sentence is affirmed. Defendant, while represented by counsel, pleaded guilty to disorderly conduct (Penal Law § 240.20 [2]), an uncharged offense, in satisfaction of an accusatory instrument that charged him with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), aggravated driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2-a] [a]), common law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), and leaving the scene of an accident without reporting it (Vehicle and Traffic Law § 600 [1] [a]). In accordance with the terms of the plea agreement, defendant was sentenced to a conditional discharge and to pay a fine in the amount of $250. On appeal, defendant contends that, based on his indigency, his sentence was excessive. As a general rule, a defendant who has been sentenced according to the terms of a bargained-for plea and sentencing agreement will not be heard to complain that the sentence was unduly harsh or excessive (see People v Galvez, 72 AD3d 838 [2010]; People v Ubiles, 59 AD3d 572 [2009]; People v Oneyeukwu, 56 Misc 3d 140[A], 2017 NY Slip Op 51100[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; People v Jackson, 49 Misc 3d 134[A], 2015 NY Slip [*2]Op 51464[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Under the circumstances presented, we find no basis to deviate from that rule. The sentence imposed did not constitute an abuse of sentencing discretion or a failure to observe sentencing principles, and defendant has not demonstrated the existence of mitigating or extraordinary circumstances warranting a modification of the sentence in the interest of justice (see People v Farrar, 52 NY2d 302 [1981]; People v Vega, 73 AD3d 1218 [2010]; People v Suitte, 90 AD2d 80 [1982]; People v Oneyeukwu, 56 Misc 3d 140[A], 2017 NY Slip Op 51100[U]). Moreover, the fine is not inherently onerous and the fact that defendant was represented in the Criminal Court by assigned counsel, and now again on appeal, is insufficient, standing alone, to merit the inference that he is unable to pay the fine (see People v Watson, 90 AD3d 1666 [2011]; People v Gallacher, 278 AD2d 935 [2000]; People v Garcia, 59 Misc 3d 134[A], 2018 NY Slip Op 50492[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; People v Ellsworth, 57 Misc 3d 157[A], 2017 NY Slip Op 51660[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; People v Jackson, 49 Misc 3d 134[A], 2015 NY Slip Op 51464[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; cf. People v Helm, 260 AD2d 803 [1999]). Accordingly, the sentence is affirmed. PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: January 04, 2019