| People v Kropp |
| 2008 NY Slip Op 02659 [49 AD3d 1339] |
| March 21, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael B.Kropp, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (David E. Gann of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered July18, 2007. The judgment convicted defendant, upon his plea of guilty, of felony driving whileintoxicated and aggravated unlicensed operation of a motor vehicle in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence imposed for aggravated unlicensed operation of a motor vehicle in thethird degree and as modified the judgment is affirmed, and the matter is remitted to GeneseeCounty Court for resentencing on that offense.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193 [1][c] [former (ii)]) and aggravated unlicensed operation of a motor vehicle in the third degree(§ 511 [1]). Contrary to defendant's contention, the bargained-for sentence of incarcerationimposed by County Court is not unduly harsh or severe. "We are constrained, however, to vacatethe sentence" imposed for aggravated unlicensed operation of a motor vehicle in the third degree(People v John, 288 AD2d 848, 850 [2001], lv denied 97 NY2d 705 [2002]; see People v Figueroa, 17 AD3d1130, 1131 [2005], lv denied 5 NY3d 788 [2005]; People v Fehr, 303 AD2d1039, 1040 [2003], lv denied 100 NY2d 538 [2003]). The comments of the court inimposing a $200 fine with respect to that offense reflect " 'the court's misapprehension that it hadno ability to exercise its discretion' in determining whether to impose a fine" (John, 288AD2d at 850). We therefore modify the judgment accordingly, and we remit the matter to CountyCourt for resentencing on that offense. Present—Scudder, P.J., Martoche, Smith, Greenand Gorski, JJ.