| People v Adams |
| 2012 NY Slip Op 02349 [93 AD3d 1082] |
| March 29, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Francis J.Adams, Sr., Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered October 27, 2010, convicting defendant upon his plea of guilty of the crimes of drivingwhile intoxicated, aggravated unlicensed operation of a motor vehicle in the third degree andconsumption of alcohol in a motor vehicle.
Defendant waived indictment and, in satisfaction of a superior court information, pleadedguilty to driving while intoxicated (hereinafter DWI), aggravated unlicensed operation of a motorvehicle in the third degree and consumption of alcohol in a motor vehicle. The charges stemmedfrom an incident wherein defendant, a truck driver operating a tractor trailer bound for the City ofPlattsburgh, Clinton County, stopped in the City of Glens Falls, Warren County to purchase an18-pack of beer, which he thereafter partially consumed. When defendant pulled into aDepartment of Transportation checkpoint on Interstate 87, he was found to be intoxicated andthereafter was charged accordingly.
Pursuant to the underlying plea agreement, defendant, who waived his right to appeal, was tobe sentenced to a prison term of 1 to 3 years, together with the mandatory surcharge as to theDWI conviction and a fine and surcharges as to the remaining offenses. At sentencing, however,County Court imposed—insofar as is relevant here—a sentence of1
We agree. Defendant's waiver of the right to appeal does not preclude him from challengingthe enhanced sentence imposed (seePeople v Lindsey, 80 AD3d 1005, 1006 [2011]; People v Donnelly, 80 AD3d797, 798 [2011]) and, although defendant did not preserve this issue for our review by moving towithdraw his plea or vacate the judgment of conviction, we deem this to be an appropriateinstance in which to exercise our interest of justice jurisdiction to take corrective action(see CPL 470.15 [6]; People vFisher, 76 AD3d 1122, 1122 [2010]). Here, County Court indeed advised defendant thatif, after reviewing the presentence investigation report, it could not in good conscience imposethe agreed-upon sentence, it would permit defendant to withdraw his plea. However, CountyCourt thereafter imposed the enhanced sentence without affording defendant the opportunity todo so. Accordingly, we vacate defendant's sentence and remit this matter to County Court toimpose the agreed-upon sentence or, in the alternative, afford defendant the opportunity towithdraw his plea before imposing the enhanced sentence (see People v Fisher, 76 AD3dat 1123; People v Culcleasure, 75AD3d 832, 833 [2010]).
Mercure, A.P.J., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by vacating the sentence imposed;matter remitted to the County Court of Clinton County for further proceedings not inconsistentwith this Court's decision; and, as so modified, affirmed.