| People v Duquette |
| 2012 NY Slip Op 07335 [100 AD3d 1105] |
| November 8, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Bernice M.Duquette, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), forrespondent.
Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered April 4,2011, convicting defendant upon her plea of guilty of the crimes of driving while intoxicated(two counts) and aggravated unlicensed operation of a motor vehicle in the first degree.
In satisfaction of a superior court information, defendant pleaded guilty to two felony countsof driving while intoxicated (see Vehicle and Traffic Law § 1192 [2],[3])[FN1]and one count of aggravated unlicensed operation of a motor vehicle in the first degree(see Vehicle and Traffic Law § 511 [3] [a]). Thereafter, defendant was sentencedto three concurrent prison terms of 1
Defendant contends, and the People concede, that CountyCourt's use of the phrase "mandatory" in imposing the fines for the driving while intoxicatedcounts was erroneous[FN2]inasmuch as it appears to indicate "the court's misapprehension that it had no ability to exerciseits discretion" in determining whether it was appropriate to impose a fine (People vDomin, 284 AD2d 731, 733 [2001], lv denied 96 NY2d 918 [2001], orderamended 291 AD2d 580 [2002]; seePeople v Figueroa, 17 AD3d 1130 [2005], lv denied 5 NY3d 788 [2005]).Specifically, while the court possessed the authority to impose both imprisonment and a fine inthis case as to those counts (see Vehicle and Traffic Law § 1193 [1] [c] [i]), it wasimproper to describe such fines as "mandatory." Accordingly, we deem it appropriate to remit thematter for resentencing as to those fines (see People v Domin, 284 AD2d at 732).
Rose, J.P., Lahtinen, Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment ismodified, on the law, by vacating that portion of the sentence as imposed mandatory minimumfines upon defendant with respect to the two counts of driving while intoxicated; matter remittedto the County Court of Clinton County for resentencing with respect thereto; and, as so modified,affirmed.
Footnote 1: An information setting forthdefendant's prior conviction in November 2009 of driving while intoxicated pursuant to Vehicleand Traffic Law § 1192 (2) was filed contemporaneously with the superior courtinformation so as to satisfy the statutory prerequisite to charge defendant with the two counts ofdriving while intoxicated as class E felonies (see Vehicle and Traffic Law § 1193[1] [c] [i]).
Footnote 2: Although the People made thesame concession with respect to the aggravated unlicensed operation count, we find no errorinasmuch as a fine is a mandatory component of a conviction pursuant to that statutory section(see Vehicle and Traffic Law § 511 [3] [b]).