| People v Bills |
| 2013 NY Slip Op 00624 [103 AD3d 1149] |
| February 1, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RandaBills, Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of counsel), forrespondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.),rendered May 2, 2011. The judgment convicted defendant, upon his plea of guilty, ofdriving while intoxicated, a class E felony (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the sentence imposed and as modified the judgment is affirmed, andthe matter is remitted to Cattaraugus County Court for resentencing.
Memorandum: Defendant appeals from a judgment convicting her, upon her plea ofguilty, of two counts of driving while intoxicated as a felony (Vehicle and Traffic Law§§ 1192 [2]; 1193 [1] [c]). Although defendant validly waived her right toappeal, we agree with defendant that her sentence must be vacated because the recordestablishes that County Court misapprehended its discretion in imposing a $1,000 fine oneach count (see People vFigueroa, 17 AD3d 1130, 1131 [2005], lv denied 5 NY3d 788[2005]; People v John, 288 AD2d 848, 850 [2001], lv denied 97 NY2d705 [2002]). The court's statement, "I will have to fine you," reflects "the court'smisapprehension that it had no ability to exercise its discretion in determining whether toimpose a fine" (People vKropp, 49 AD3d 1339, 1340 [2008] [internal quotation marks omitted]; seeFigueroa, 17 AD3d at 1131; People v Fehr, 303 AD2d 1039, 1040 [2003],lv denied 100 NY2d 538 [2003]). We therefore modify the judgment by vacatingthe sentence, and we remit the matter to County Court for resentencing. In light of ourdetermination, we do not address defendant's remaining contention.Present—Centra, J.P., Peradotto, Lindley, Whalen and Martoche, JJ.