| People v Farrelly |
| 2012 NY Slip Op 01307 [92 AD3d 1290] |
| February 17, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Scott P.Farrelly, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Diane M. Adsit of counsel), for respondent. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), in HisStatutory Capacity under Executive Law § 71.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), renderedFebruary 1, 2011. The judgment convicted defendant, upon his plea of guilty, of driving whileintoxicated, a class D felony and unlawful fleeing a police officer in a motor vehicle in the thirddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty offelony driving while intoxicated ([DWI] Vehicle and Traffic Law § 1192 [3]; § 1193[1] [c] [ii]) and unlawful fleeing a police officer in a motor vehicle in the third degree (Penal Law§ 270.25). We reject defendant's contention that the restitution order in favor of one of thevictims does not correspond with the conditions of restitution set at sentencing. County Courtassured defendant at sentencing that he would not have to pay restitution twice in the event thatthe victim recovered insurance proceeds for the damage defendant caused to his house, and therestitution order does not conflict with that statement. Defendant's further contention that thecourt erred in ordering restitution in excess of the statutory cap is without merit inasmuch asdefendant consented to the amount of restitution (see § 60.27 [5] [a]).
Defendant contends that he should not have been sentenced to a period of probation with anignition interlock device requirement following his sentence of incarceration. He contends thatonly aggravated DWI offenders (see Vehicle and Traffic Law § 1192 [2-a]) aresubject to the mandatory supervision and ignition interlock device requirements set forth in, interalia, Vehicle and Traffic Law § 1198 for crimes committed prior to August 15, 2010 andthat non-aggravated DWI offenders such as himself are subject to those requirements only foroffenses committed on or after August 15, 2010. We reject those contentions and conclude thatdefendant misreads the relevant statutes. Pursuant to the Laws of 2009 (ch 496, § 15), theamendments to, inter alia, Vehicle and Traffic Law § 1198, are applicable to defendantinasmuch as he was sentenced after they took effect, i.e., after August 15, 2010. Defendant failedto preserve for our review his further [*2]contentions that thoseamendments are unconstitutional in several respects (see generally People v Rivera, 9 NY3d 904, 905 [2007]; Peoplev Davidson, 98 NY2d 738, 739-740 [2002]; People v Korber, 89 AD3d 1543 [2011]), and we decline toexercise our power to review those contentions as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Present—Centra, J.P., Fahey, Peradotto, Carni andLindley, JJ.