People v Anderson

2012 NY Slip Op 06997 [99 AD3d 1034]

October 18, 2012

Appellate Division, Third Department

As corrected through Wednesday, November 28, 2012

The People of the State of New York, Respondent, v William D.Anderson, Appellant.

—[*1]Teresa C. Mulliken, Harpersfield, for appellant.

Mark D. Suben, District Attorney, Cortland (Christine M.R. Ferraro of counsel), forrespondent.

Kavanagh, J. Appeal from a judgment of the County Court of Cortland County (Ames, J.),rendered March 22, 2011, convicting defendant upon his plea of guilty of the crime of drivingwhile intoxicated.

In full satisfaction of a three-count indictment, defendant pleaded guilty to driving whileintoxicated as a felony and executed a waiver of the right to appeal. Under the terms of the pleaagreement, defendant was to be sentenced to a maximum prison term of 11/3 to 4years which, in County Court's discretion, could be deemed to run consecutively or concurrentlywith a previously imposed sentence depending upon the information the court received regardingdefendant's background at the time sentence was to be imposed. The court thereafter sentenceddefendant to a prison term of 1 to 3 years, to run consecutively to the undischarged prison term,and imposed a $2,000 fine. Defendant now appeals.

Defendant argues, and the record confirms, that the imposition of a fine was not part of theplea agreement and defendant was never advised prior to entering the guilty plea that a finewould be imposed as part of his sentence. In addition, while defendant declined County Court'soffer to withdraw his plea, that decision was made only after defendant had been advised by thecourt and his counsel—albeit mistakenly—that the imposition of a fine wasmandated by the [*2]statute (see Vehicle and Traffic Law§ 1193 [1] [c] [ii]). Therefore, defendant's claim regarding the imposition of this part of thesentence survives the waiver of his right to appeal (see People v Callahan, 80 NY2d 273,280 [1992]; People v Greathouse,62 AD3d 1212, 1213 [2009], lv denied 13 NY3d 744 [2009]; People v Figueroa, 17 AD3d 1130,1130 [2005], lv denied 5 NY3d 788 [2005]), and we agree with defendant that, eventhough he did not seek to vacate his plea, the provision of his sentence imposing a fine must bevacated (see People v Figueroa, 17 AD3d at 1130; People v Fehr, 303 AD2d1039, 1040 [2003], lv denied 100 NY2d 538 [2003]; People v Domin, 284 AD2d731, 733 [2001], lv denied 96 NY2d 918 [2001], amended 291 AD2d 580[2002]).

Further, as the People concede, defendant was not sentenced as a second felony offender andthe notation to that effect must be removed from the sentencing and commitment form (see People v Vasavada, 93 AD3d893, 894 [2012], lv denied 19 NY3d 978 [2012]; People v Hawkins, 70 AD3d 1389, 1390 [2010], lv denied14 NY3d 888 [2010]).^[FN*]Finally, defendant's contention regarding the severity of his prison sentence is precluded by hisvalid waiver of the right to appeal his conviction and sentence (see People v Santana, 95 AD3d1503, 1504 [2012]; People v McDonald, 295 AD2d 756, 757 [2002], lvdenied 98 NY2d 711 [2002]).

Mercure, J.P., Spain, Malone Jr. and Egan Jr., JJ. concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by eliminating the fine and, as somodified, affirmed.

Footnote *: In fact, defendant could not havebeen sentenced as a second felony offender (see Vehicle and Traffic Law § 1193[1] [c] [ii]; People v Shannon, 89 NY2d 1000, 1001 [1997]; People v Clearwater,98 AD2d 912, 912-913 [1983]).