People v Tuszynski

2008 NY Slip Op 10264 [57 AD3d 1380]

December 31, 2008

Appellate Division, Fourth Department

As corrected through Wednesday, February 11, 2009

The People of the State of New York, Respondent, v Dean S. Tuszynski,Appellant. (Appeal No. 1.)

—[*1]Frank H. Hiscock Legal Aid Society, Syracuse (Robert P. Rickert of counsel), fordefendant-appellant.

William J. Fitzpatrick, District Attorney, Syracuse (Robert E. Rust, Jr., of counsel), forrespondent.

Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered February21, 2006. The judgment convicted defendant, upon his plea of guilty, of felony driving while intoxicated.

It is hereby ordered that the judgment so appealed from is unanimously modified on the law byvacating the 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: In each appeal,defendant appeals from a judgment convicting him, upon his plea of guilty, of felony driving whileintoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [former (i)]). We agreewith defendant that the sentences of two consecutive terms of imprisonment of 11/3 to 4years are illegal on the ground that his operation of a motor vehicle while intoxicated consisted of asingle, continuous act. Penal Law § 70.25 (2) requires that sentences imposed for two or moreoffenses must run concurrently when the offenses are "committed through a single act or omission, orthrough an act or omission which in itself constituted one of the offenses and also was a materialelement of the other." Here, the People failed to establish the legality of consecutive sentences byshowing that defendant's operation of a motor vehicle while intoxicated with respect to each judgmentconstituted two "separate and distinct acts" (People v Laureano, 87 NY2d 640, 643 [1996]).We therefore modify the judgment in each appeal by vacating the sentence. Inasmuch as defendant'ssentence in each appeal was imposed pursuant to a plea agreement, we remit each 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, 166AD2d 924, 925 [1990], citing People v Farrar, 52 NY2d 302, 307-308 [1981]; see People v Backus, 56 AD3d 1119[2008]). Present—Scudder, P.J., Martoche, Lunn, Peradotto and Green, JJ.