| People v Eron |
| 2010 NY Slip Op 09766 [79 AD3d 1774] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Chris Eron,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.),rendered November 21, 2008. The judgment convicted defendant, upon his plea of guilty, ofdriving while intoxicated, a class E felony, and aggravated unlicensed operation of a motorvehicle in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence and as modified the judgment is affirmed, and the matter is remitted toSupreme Court, Erie County, for further proceedings in accordance with the followingmemorandum: On appeal from a judgment convicting him upon his plea of guilty of drivingwhile intoxicated as a felony (DWI) (Vehicle and Traffic Law § 1192 [3]; § 1193 [1][c] [former (i)]) and aggravated unlicensed operation of a motor vehicle in the first degree (AUO)(§ 511 [3] [a] [i]), defendant contends that his waiver of the right to appeal is invalidbecause Supreme Court failed to explain the rights that were being foreclosed by that waiver andto inform defendant of the full range of sentencing options. We reject that contention. The recordestablishes that "defendant understood that the right to appeal is separate and distinct from thoserights automatically forfeited upon a plea of guilty" and that his waiver of the right to appeal wasknowingly, voluntarily, and intelligently entered (People v Lopez, 6 NY3d 248, 256 [2006]). Any failure by the courtto inform defendant of the full range of sentencing options before he waived the right to appealdoes not negate the validity of his waiver but, rather, the consequence of the court's failure is thatthe waiver does not preclude defendant from challenging the severity of the sentence (see e.g. People v Boyzuck, 72 AD3d1530 [2010]; People v Fehr, 303 AD2d 1039 [2003], lv denied 100 NY2d538 [2003]; People v McLean, 302 AD2d 934 [2003]).
Defendant contends that the sentence is unduly harsh and severe based on the court's failureto impose the minimum period of incarceration for the DWI conviction, and he further contendsthat the court improperly enhanced the sentence by imposing fines that were not discussed duringplea negotiations. Although we reject defendant's former contention with respect to the severityof the sentence, we nevertheless vacate the sentences imposed on both counts based on the lattercontention because the court "erred in enhancing the promised sentence by imposing a fine [foreach count] . . . [*2]without affording [defendant] anopportunity to withdraw the plea" (People v Barber, 31 AD3d 1145, 1146 [2006]). We also note thatthe sentence imposed on the AUO count is illegal. Vehicle and Traffic Law § 511 (3) (b)requires that a defendant convicted of that crime be sentenced to a fine, as well as either a term ofimprisonment or a sentence of probation (see generally People v Prescott, 95 NY2d 655,664 [2001]), and here the court sentenced defendant to a fine only.
We therefore modify the judgment by vacating the sentences on both counts, and we remitthe matter to Supreme Court to sentence defendant to the agreed-upon sentence with respect tothe DWI count or to afford defendant the opportunity to withdraw the plea on that count (seePeople v Rodney E., 77 NY2d 672, 676 [1991]). With respect to the AUO count, the courtupon remittal must afford defendant the opportunity to accept an amended lawful sentence or towithdraw his plea of guilty with respect to the AUO count, and the DWI count if he is so advised,and thus be restored to his pre-plea status with respect to one or both counts (see People vHollis, 309 AD2d 764, 765 [2003], lv dismissed 1 NY3d 597 [2004]).Present—Scudder, P.J., Smith, Green, Pine and Gorski, JJ.