People v Pope

2010 NY Slip Op 04820 [74 AD3d 842]

June 1, 2010

Appellate Division, Second Department

As corrected through Wednesday, August 25, 2010

The People of the State of New York,Respondent, v Charlie C. Pope, Appellant.

—[*1]Richard J. Barbuto, Babylon, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Noll and Michael E. Soffer ofcounsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Jaeger, J.),rendered October 31, 2007, convicting him of driving while intoxicated and aggravatedunlicensed operation of a motor vehicle in the first degree (two counts), after a nonjury trial, andimposing sentence.

Ordered that the judgment is modified, on the law and as a matter of discretion in the interestof justice, by vacating the sentence imposed on the conviction of driving while intoxicated; as somodified, the judgment is affirmed, and the matter is remitted to the County Court, NassauCounty, for resentencing on that conviction.

The defendant's contention that the evidence was legally insufficient to establish his guilt ofaggravated unlicensed operation of a motor vehicle in the first degree is unpreserved forappellate review (see CPL 470.05 [2]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.Moreover, in fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the factfinder's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt was not against the weight of the evidence(see People v Romero, 7 NY3d633 [2006]).

The sentencing minutes indicate that the defendant was sentenced to a term of 1 to 4 years ofimprisonment on the conviction of driving while intoxicated. However, the order of commitmentindicates that the sentence imposed for that conviction was a term of 11/3 to 4years of imprisonment. Such a discrepancy requires remittal for resentencing (see People vCano, 287 AD2d 730 [2001]). We note that, contrary to the defendant's contention, theimposition of an indeterminate prison term of 1 to 4 years for a class D felony is not invalid(see Penal Law § 70.00 [2] [d]; [3] [b]). Accordingly, we remit the matter to theCounty Court, Nassau County, for clarification of the [*2]discrepancy, and thereafter for resentencing.

The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Skelos, J.P., Angiolillo, Balkin and Lott, JJ., concur.