| People v Lafferty |
| 2009 NY Slip Op 02043 [60 AD3d 1318] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robert A.Lafferty, Appellant. |
—[*1] Edward M. Sharkey, District Attorney, Little Valley, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedAugust 8, 2005. The judgment convicted defendant, upon his plea of guilty, of driving whileintoxicated, a class D felony, and aggravated unlicensed operation of a motor vehicle in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by vacating the sentence and as modified thejudgment is affirmed, and the matter is remitted to Cattaraugus County Court for furtherproceedings in accordance with the following memorandum: Defendant appeals from a judgmentconvicting him upon his plea of guilty of felony driving while intoxicated ([DWI] Vehicle andTraffic Law § 1192 [3]; § 1193 [1] [c] [former (ii)]) and aggravated unlicensedoperation of a motor vehicle in the second degree (§ 511 [2] [a] [ii]). As part of the pleaagreement, County Court stated that it would impose an indeterminate term of imprisonment ofno more than 2 to 6 years. The court, however, failed to advise defendant that the sentence on theDWI count could include a fine. In addition to imposing a term of imprisonment of 2 to 6 yearson the DWI count at the time of sentencing, the court ordered defendant to pay a fine of $3,000on that count, as well as a fine of $1,000 on the aggravated unlicensed operation count.
As the People correctly concede, the court erred in imposing a fine on the DWI countwithout affording defendant an opportunity to withdraw his plea inasmuch as the fine was notmentioned at the time of the plea (seePeople v Barber, 31 AD3d 1145, 1146 [2006]; People v Fulton, 238 AD2d 439[1997]). Although the issue is not preserved for our review (see CPL 470.05 [2]), wenevertheless exercise our power to review it as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Because defendant was denied the benefit of his plea bargain,we modify the judgment by vacating the sentence, and we remit the matter to County Court toimpose the sentence promised on the DWI count or to afford defendant the opportunity towithdraw his plea (see People v Shabazz, 203 AD2d 947 [1994]; see also Santobellov New York, 404 US 257, 262-263 [1971]). In the event that defendant does not withdrawhis plea and the court imposes the sentence promised on the DWI count, we note that defendantmust be resentenced on the aggravated unlicensed operation count in accordance with Vehicleand Traffic Law § 511 (2) (b). Present—Scudder, P.J., Hurlbutt, Peradotto andGorski, JJ.