| People v Dexter |
| 2013 NY Slip Op 01668 [104 AD3d 1184] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vChauncey K. Dexter, Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley (Elizabeth Ensell of counsel), forrespondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.),rendered August 1, 2011. The judgment convicted defendant, upon his plea of guilty, ofdriving while intoxicated, a class E felony.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the sentence and as modified the judgment is affirmed, and thematter is remitted to Cattaraugus County Court for further proceedings in accordancewith the following memorandum: Defendant appeals from a judgment convicting himupon his plea of guilty of driving while intoxicated (DWI) as a class E felony (Vehicleand Traffic Law §§ 1192 [2]; 1193 [1] [c] [i]). Defendant was sentenced toan indeterminate term of 1 to 3 years of incarceration followed by a one-year period ofconditional discharge with an ignition interlock device requirement. Contrary to thecontention of defendant, his sentence is not unconstitutionally disproportionate to hisoffense. Although the Court of Appeals in People v Broadie (37 NY2d 100, 111[1975], cert denied 423 US 950 [1975]) recognized that "a sentence that is'grossly disproportionate to the crime' may be considered cruel and unusual punishment"(People v Holmquist, 5AD3d 1041, 1042 [2004], lv denied 2 NY3d 800 [2004]), we conclude thatthis is not one of those rare cases described in Broadie. Defendant failed topreserve for our review his further contention that the imposition of consecutivesentences of imprisonment and conditional discharge with an ignition interlock deviceare unconstitutional multiple punishments under Penal Law § 60.21 and Vehicleand Traffic Law §§ 1193 and 1198 (see People v Rivera, 9 NY3d 904, 905 [2007]; see alsoPeople v Davidson, 98 NY2d 738, 739-740 [2002]), and we decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (see People v Farrelly, 92AD3d 1290, 1291 [2012], lv denied 19 NY3d 996 [2012]).
The sentence is not unduly harsh or severe, particularly in light of defendant's threeprior felony DWI convictions (see People v Edenholm, 9 AD3d 892, 893 [2004]). Wenote, however, that the one-year period of conditional discharge imposed by CountyCourt is illegal inasmuch as Penal Law § 65.05 (3) (a) provides that such period"shall be" three years for felony offenses, and "[n]either County Court nor this Courtpossesses interest of justice jurisdiction to impose a sentence less than the mandatorystatutory minimum" (People v Clark, 176 AD2d 1206, 1206-1207 [1991], lvdenied 79 NY2d 854 [1992]; see generally People v Vidaurrazaga, 100 AD3d 664, 665[2012]). " 'Although this issue was not raised before the [sentencing] court or on appeal,we cannot allow an [illegal] sentence to stand' " (People v Davis, 37 AD3d 1179, 1180 [2007], lvdenied 8 NY3d 983 [2007]). We therefore modify the judgment by vacating thesentence, and we remit the matter to County Court to afford defendant the opportunity toaccept an amended lawful sentence or to withdraw his guilty plea and thus be restored tohis preplea status (see People vEron, 79 AD3d 1774, 1775-1776 [2010]). Present—Centra, J.P., Fahey,Carni, Sconiers and Valentino, JJ.