| People v Panek |
| 2013 NY Slip Op 01683 [104 AD3d 1201] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vGeorge J. Panek, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel),for respondent.
Appeal from a judgment of the Cayuga County Court (Michael F. McKeon, A.J.),rendered February 21, 2012. The judgment revoked defendant's sentence of probationand imposed a sentence of imprisonment.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment revoking the sentence ofprobation previously imposed upon his conviction of felony driving while intoxicated([DWI] Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [i]) andaggravated unlicensed operation of a motor vehicle in the first degree (§ 511 [3][a] [i]). Defendant was sentenced to concurrent indeterminate terms of incarceration of 1to 3 years on each count, and to a post-incarceration conditional discharge and anignition interlock device requirement for the DWI offense. At the outset, we note that thecertificate of conviction omits the conviction of and sentence for aggravated unlicensedoperation of a motor vehicle in the first degree, as well as the sentence for the DWIoffense of a conditional discharge, and it must therefore be amended accordingly (see People v Saxton, 32 AD3d1286, 1286-1287 [2006]).
Defendant contends that the post-incarceration conditional discharge does not applyto sentencing after a violation of probation, and constitutes an illegal sentence. We rejectthat contention. Upon revoking probation, County Court properly sentenced defendant toa period of incarceration (see Penal Law §§ 60.01 [4]; 70.00 [2] [e];[3] [b]). Pursuant to Penal Law § 60.21, the court was also required to sentencedefendant to a period of probation or conditional discharge, to run consecutively to anyperiod of imprisonment. Inasmuch as section 60.21 applies "[n]otwithstanding [section60.01 (2) (d)]," defendant's contention that the sentence violated section 60.01 (2) (d) iswithout merit (see People vOliver, 98 AD3d 751, 751 [2012]).
Defendant next contends that he should have been informed of the conditionaldischarge "prior to entering his plea of guilty or his admission to the violation ofprobation," and thus the conditional discharge with the ignition interlock devicerequirement should be stricken. Insofar as defendant challenges his conviction followinghis plea of guilty, that challenge is not properly before us because he did not appeal fromthe original judgment (seePeople v Perna, 74 AD3d 1807, 1807 [2010], lv denied 17 NY3d 716[2011]). Defendant relies on People v Catu (4 NY3d 242, 244-245 [2005]) [*2]insofar as he contends that the conditional discharge was adirect consequence of his admission to the violation of probation, and that he thereforeshould have been advised of such at the time of his admission. Assuming, arguendo, thatwe agree with defendant, we conclude that the proper remedy would be vacatur of theadmission (see People vHill, 9 NY3d 189, 191 [2007], cert denied 553 US 1048 [2008]), anddefendant does not seek that relief (see People v Primm, 57 AD3d 1525, 1525 [2008], lvdenied 12 NY3d 820 [2009]; People v Dean, 52 AD3d 1308, 1308 [2008], lvdenied 11 NY3d 736 [2008]). Finally, contrary to defendant's contention, thesentence is "not unduly harsh or severe, particularly in view of defendant's [five] priorDWI convictions" (People vEdenholm, 9 AD3d 892, 893 [2004]). Present—Scudder, P.J., Centra,Lindley, Sconiers and Martoche, JJ.