| People v Smith |
| 2008 NY Slip Op 10289 [57 AD3d 1410] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Gary M. Smith,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered November 15,2006. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated as a class Dfelony, aggravated unlicensed operation of a motor vehicle in the first degree, and failure to stay within atraffic lane.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matter ofdiscretion in the interest of justice and on the law by reducing the conviction of driving while intoxicatedas a class D felony (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [former (ii)]) todriving while intoxicated as a class E felony (§ 1192 [3]; § 1193 [1] [c] [former (i)]) andvacating the sentence imposed on the first count of the indictment and by reducing the mandatorysurcharge to $250 and as modified the judgment is affirmed, and the matter is remitted to Erie CountyCourt for sentencing on driving while intoxicated as a class E felony.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of drivingwhile intoxicated as a class D felony (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c][former (ii)]), aggravated unlicensed operation of a motor vehicle in the first degree (§ 511 [3][a] [i]), and failure to stay within a traffic lane (§ 1128 [a]). As defendant correctly concedes, hefailed to preserve for our review his contention that the evidence is legally insufficient to support hisconviction of the count of driving while intoxicated (see CPL 470.05 [2]; People vGray, 86 NY2d 10, 19 [1995]). Nevertheless, we exercise our power to review that contention asa matter of discretion in the interest of justice (see CPL 470.15 [6] [a]), and we conclude thatthe evidence is legally insufficient to support the conviction of that count (see generally People vBleakley, 69 NY2d 490, 495 [1987]). In order to be convicted of driving while intoxicated as aclass D felony, a person must have been twice convicted of an offense specified in Vehicle and TrafficLaw § 1193 (1) (c) (former [ii]) within the past 10 years (see id.). Here, althoughdefendant admitted to the two prior convictions listed on the special information for driving whileintoxicated, the first conviction was on February 20, 1996, while the present offense was committed onFebruary 23, 2006. Thus, by a period of three days, the first of the two prior convictions falls outsidethe 10-year period specified in section 1193 (1) (c) (former [ii]). We therefore modify the judgment byreducing the conviction of driving while intoxicated as a class D felony to a class E felony (see§ 1193 [1] [c] [former (i)]), and we remit the matter to County Court for sentencing on drivingwhile intoxicated as a class E felony. In light of our determination, we do not address defendant'schallenge to the severity of the term of imprisonment and the fine imposed for the count of driving whileintoxicated as a class D felony.
Defendant further contends that the $275 mandatory surcharge imposed by County Court pursuantto Vehicle and Traffic Law § 1809 is illegal and thus that there was no need for defendant topreserve that contention for our review. Mandatory surcharges are not part of a defendant's sentence(see generally People v Nieves, 2 NY3d310, 314-318 [2004]), however, and we thus conclude that errors involving surcharges "are notreviewable under the illegal sentence exception to the preservation requirement" (id. at 317;see generally People v Samms, 95 NY2d 52, 56 [2000]). Nevertheless, we exercise ourpower to review defendant's contention as a matter of discretion in the interest of justice, and we notethat the authorized mandatory surcharge is $250 rather than $275 (see § 1809 [1] [b][former (i)]). We therefore further modify the judgment by reducing the mandatory surchargeaccordingly (see People v Figueroa, 17AD3d 1130 [2005], lv denied 5 NY3d 788 [2005]). Present—Centra, J.P.,Fahey, Peradotto, Green and Gorski, JJ.