| People v Backus |
| 2008 NY Slip Op 08772 [56 AD3d 1119] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Derek Backus,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), renderedAugust 3, 2007. The judgment convicted defendant, upon his plea of guilty, of vehicular assaultin the second degree (two counts) and driving while intoxicated.
It is hereby ordered that the judgment so appealed from is modified on the law by vacatingthe sentence and as modified the judgment is affirmed, and the matter is remitted to OnondagaCounty Court for further proceedings in accordance with the following memorandum: Defendantappeals from a judgment convicting him, upon his plea of guilty, of two counts of vehicularassault in the second degree (Penal Law § 120.03 [1]) and one count of driving whileintoxicated (Vehicle and Traffic Law § 1192 [3]), and sentencing him to two one-yearconcurrent definite terms for vehicular assault, and a one-year definite term for driving whileintoxicated, to be served consecutively. As defendant correctly contends, the offense of drivingwhile intoxicated is a material element of the offense of vehicular assault in the second degreeand thus the sentence is illegal insofar as County Court imposed consecutive sentences (seePenal Law § 70.25 [2]; seegenerally People v Hamilton, 4 NY3d 654 [2005]; People v Laureano, 87 NY2d640, 643 [1996]). We therefore modify the judgment by vacating the sentence. Inasmuch asdefendant's sentence was imposed pursuant to a plea agreement, we remit the matter to CountyCourt to resentence defendant or to "entertain a motion by the People, should the People be sodisposed, to vacate the plea and set aside the conviction in its entirety" (People v Irwin,166 AD2d 924, 925 [1990], citing People v Farrar, 52 NY2d 302, 307-308 [1981]).
All concur except Centra and Gorski, JJ., who dissent in part in accordance with thefollowing memorandum.
Centra and Gorski, JJ. (dissenting in part). We respectfully dissent in part and would modifythe judgment by directing that the sentence imposed for driving while intoxicated shall runconcurrently with the sentences imposed for vehicular assault in the second degree. We agreewith the majority that the sentence imposed by County Court is illegal because the one-yeardefinite term for driving while intoxicated may not run consecutively with the one-yearconcurrent definite terms for vehicular assault. When a court imposes an illegal sentence,however, this Court may in its discretion either remit the matter for resentencing or simplysubstitute a legal sentence for the illegal sentence (see People v LaSalle, 95 NY2d 827,829 [2000]). In our view, under the circumstances of this case, we should direct that thesentences run concurrently rather than remitting the matter [*2]forresentencing (see e.g. People vFuentes, 52 AD3d 1297, 1301 [2008], lv denied 11 NY3d 736 [2008];People v Krocke, 265 AD2d 879 [1999]). As noted by the majority, the sentence in thiscase was imposed pursuant to a plea agreement, but we have in the past modified a judgment onthe ground that the bargained-for sentence was illegal because consecutive sentences were notpermissible and have directed that the sentences run concurrently (see People v Taylor,197 AD2d 858 [1993]). There is no sentence that the court could impose here that would result inthe bargained-for sentence, i.e., two one-year definite terms of imprisonment. Defendant hasalready served a one-year definite term and, "when the court has imposed a sentence ofimprisonment and such sentence is in accordance with law, such sentence may not be changed,suspended or interrupted once the term or period of the sentence has commenced" (CPL 430.10).Although it is implicit in CPL 430.10 that a court has the power to correct an illegal sentenceeven if the defendant has begun serving it, a court may not alter a sentence that "is in accordancewith law" once it is being served (id.; see People v Carpenter, 19 AD3d 730, 732 [2005], lvdenied 5 NY3d 804 [2005]). In our view, the illegality of the sentence was in directing theone-year definite sentence for driving while intoxicated to run consecutively to the one-yearconcurrent definite sentences for vehicular assault (see People v Davis, 12 AD3d 237, 238 [2004]). That defect iscorrected by directing that the sentences run concurrently (see id.).Present—Hurlbutt, J.P., Smith, Centra, Fahey and Gorski, JJ.