| People v O'Brien |
| 2013 NY Slip Op 07525 [111 AD3d 1028] |
| November 14, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vMichelle O'Brien, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Alexander Lesyk of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered May 11, 2012, convicting defendant upon her plea of guilty ofthe crime of driving while intoxicated.
In August 2011, defendant, whose criminal history includes prior misdemeanor andfelony driving while intoxicated convictions, waived indictment and agreed to beprosecuted by a superior court information charging her with the class D felony ofdriving while intoxicated. Pursuant to a negotiated plea bargain, defendant pleaded guiltyto that charge and waived her right to appeal with the understanding that, if shesuccessfully completed substance abuse treatment, she would be sentenced to five yearsof probation. Defendant was advised at that time, however, that if her treatment wasunsuccessful, County Court would impose a term of incarceration with no commitmentas to the sentence. Defendant was thereafter given several opportunities to completetreatment, but failed to comply. In March 2012, the court, with defendant's consent,sentenced her to one year of interim probation, which included, among other things, theagreement that, if defendant's treatment were successful, she would be sentenced toprobation with one year of credit and, if she again failed to comply, she would receive aprison sentence. Shortly thereafter, defendant violated the terms of her interim probation.Ultimately, the court imposed a sentence of 2 to 6 years in prison, to be followed by aconsecutive sentence of five years of probation with the requirement that she complywith the ignition interlock [*2]program. This appealensued.
We affirm. Initially, contrary to defendant's argument, County Court's imposition of aperiod of interim probation prior to her sentencing was authorized by CPL 390.30 (6) (a),and defendant's reliance on People v Rodney E. (77 NY2d 672, 674 [1991]),decided prior to the enactment of this statutory provision, is inapposite. Additionally, thecourt was required to consider defendant's violation of the interim probation conditionsin determining the appropriate sentence (see e.g. People v French, 72 AD3d 1397, 1397-1398[2010], lv denied 15 NY3d 804 [2010]; People v Saucier, 69 AD3d 1125, 1125-1126 [2010]).Finally, we disagree with defendant's contention that it was error for the court to imposea sentence of probation to run consecutively to her prison sentence. Upon defendant'sconviction pursuant to Vehicle and Traffic Law § 1192 (2), the court was requiredto sentence defendant to a consecutive period of probation or conditional dischargepursuant to Penal Law § 60.21, which specifically states that it applies"notwithstanding" Penal Law § 60.01 (2) (d) (see People v Panek, 104 AD3d 1201, 1201-1202 [2013];see also People v Kidd, 105AD3d 1267, 1268 [2013], lv denied 21 NY3d 1005 [2013]; compare People v Flagg, 107AD3d 1613 [2013]).
Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.