People v Galdamez-Galdamez
2021 NY Slip Op 06624 [199 AD3d 1014]
November 24, 2021
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 29, 2021


[*1]
 The People of the State of New York, Respondent,
v
Diego Galdamez-Galdamez, Appellant.

Laurette D. Mulry, Riverhead, NY (Felice Milani of counsel), for appellant.

Timothy D. Sini, District Attorney, Riverhead, NY (Karla Lato of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Stephen Braslow, J.), rendered January 21, 2020, convicting him of aggravated driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2-a) (b) (four counts), aggravated unlicensed operation of a motor vehicle in the first degree (two counts), driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2), driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3), endangering the welfare of a child (two counts), aggravated unlicensed operation of a motor vehicle in the third degree, failing to stop at a traffic control device, following too closely, and driving without a valid driver license, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant was charged in a 14-count indictment with, among other crimes, two counts of aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a] [i]) and one count of driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3). The defendant pleaded guilty to the entire indictment in exchange for a negotiated sentence. On appeal, the defendant contends that his conviction of driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3) should be reversed and that count of the indictment dismissed, in effect, because it is an inclusory concurrent count of aggravated unlicensed operation of a motor vehicle in the first degree (see CPL 300.40 [3] [b]).

The defendant's contention is without merit. CPL 300.40 (3) (b) provides in relevant part that, with respect to inclusory concurrent counts, "[a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted." That statute, however, "deals only with trials, and has no application to convictions obtained on [a] plea of guilty" (People v Walton, 41 NY2d 880, 880-881 [1977]). By contrast, CPL 220.10 (2) provides that, with exceptions not relevant here, "the defendant may as a matter of right enter a plea of 'guilty' to the entire indictment." The defendant may do so "even [where] a series of inclusory concurrent counts is involved" (People v Walton, 41 NY2d at 881; see CPL 220.10 [4] [c]; People v Cobb, 145 AD3d 738, 739 [2016]). Accordingly, there is no basis for disturbing the conviction. Mastro, J.P., Brathwaite Nelson, Iannacci and Genovesi, JJ., concur.