| People v Horan |
| 2010 NY Slip Op 00538 [69 AD3d 879] |
| January 19, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael T. Horan, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Cristin N. Connell of counsel; JessicaN. Reich on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Gulotta, J.),rendered June 30, 2008, convicting him of aggravated driving while intoxicated, assault in thethird degree, and leaving the scene of an incident without reporting, upon his plea of guilty, andsentencing him to an indeterminate term of imprisonment of 1 to 3 years and a fine in the sum of$5,000 on the conviction of aggravated driving while intoxicated, a determinate term ofimprisonment of one year on the conviction of assault in the third degree, and a determinate termof imprisonment of 90 days and a fine in the sum of $5,000 on the conviction of leaving thescene of an incident without reporting, with all terms of imprisonment to run concurrently witheach other.
Ordered that the judgment is modified, on the law, by vacating so much of the sentence asimposed a fine in the sum of $5,000 upon the conviction of leaving the scene of an incidentwithout reporting, and substituting therefor a provision imposing a fine in the sum of $500 uponthat conviction; as so modified, the judgment is affirmed.
To the extent the defendant claims that the sentence imposed was excessive, his valid waiverof his right to appeal, executed as part of his plea agreement, precludes review of the contention(see People v Lopez, 6 NY3d248, 255 [2006]; People vWhite, 62 AD3d 916 [2009];People v Powell, 60 AD3d 974, 974-975 [2009]). However, to the extent that thedefendant contends that the fine imposed upon his conviction under Vehicle and Traffic Law§ 600 (2) (a) of leaving the scene of an incident without reporting was illegal, thiscontention may be reviewed despite the defendant's waiver of his right to appeal (see Peoplev Lopez, 6 NY3d at 255; People v Callahan, 80 NY2d 273, 280 [1992]). At the pleaproceedings, among other things, the County Court promised that, in exchange for his plea ofguilty to the charge of leaving the scene of an incident without reporting (as a class Bmisdemeanor), a fine in the sum of $500 would be imposed. That is the maximum fineauthorized by the statute (see Vehicle and Traffic Law § 600 [2] [c]). The sentenceand commitment sheet also states that a fine in the sum of $500 would be imposed upon thedefendant's conviction of leaving the scene of an incident without reporting. However, eitherbecause the court misspoke, or due to an error in transcription, the sentencing minutes reflectthat the court imposed a fine in the sum of $5,000 upon this conviction—a clearly illegalsentence. Under the circumstances, and since the defendant was promised a sentence in whichthe fine imposed would be in the [*2]sum of $500, we modify thejudgment accordingly (see People v Ruvinsky, 143 AD2d 1062, 1062-1063 [1988]).Fisher, J.P., Miller, Eng and Hall, JJ., concur.