| People v Olmstead |
| 2013 NY Slip Op 07770 [111 AD3d 1063] |
| November 21, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vStephen Olmstead, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Alexander Lesyk of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered November 7, 2011, convicting defendant upon his plea of guiltyof the crime of driving while intoxicated.
In satisfaction of a three-count indictment, defendant pleaded guilty to misdemeanordriving while intoxicated and waived his right to appeal. County Court thereaftersentenced him to 30 days in jail and three years of probation, and imposed a fine of$1,000 plus fees and surcharges. Defendant appeals.
Defendant asserts that the indictment is defective in that it incorrectly charged themisdemeanor counts of driving while intoxicated as class A, rather than unclassified,misdemeanors. Any such deficiency in the indictment would constitute a technical,nonjurisdictional defect that was waived by defendant's guilty plea (see People v Porath, 104AD3d 1028, 1029 [2013], lv denied 21 NY3d 1019 [2013]; People v Taylor, 82 AD3d1291, 1291 [2011], lv denied 16 NY3d 900 [2011]; People v Cullen, 62 AD3d1155, 1157 [2009], lv denied 13 NY3d 795 [2009]).
However, we are constrained to vacate that portion of defendant's sentence thatimposed a fine. Initially, we note that defendant's challenge to the fine survives hiswaiver of the right to appeal inasmuch as it implicates his "right to be sentenced asprovided by law" (People v Fuller, [*2]57 NY2d152, 156 [1982]; see People vFigueroa, 17 AD3d 1130, 1131 [2005], lv denied 5 NY3d 788 [2005];People v Fehr, 303 AD2d 1039, 1040 [2003], lv denied 100 NY2d 538[2003]; People v Moore, 212 AD2d 1062, 1062 [1995]). Pursuant to Vehicle andTraffic Law § 1193 (1) (b), County Court was authorized to impose a term ofimprisonment, a fine or both upon defendant's conviction for driving while intoxicated.However, the court improperly described the fine as "mandatory" during the pleacolloquy and there is no indication that it understood otherwise when it imposed the fineat sentencing. On this record, it is unclear whether County Court misapprehended itsability to exercise discretion in determining whether to impose a fine (see People v Bills, 103 AD3d1149, 1149-1150 [2013]; People v Duquette, 100 AD3d 1105, 1106 [2012]; People v Barber, 31 AD3d1145, 1146 [2006]; People v Figueroa, 17 AD3d at 1131; People vFehr, 303 AD2d at 1040). Accordingly, we vacate the portion of the sentence thatimposed a fine and remit the matter to County Court to exercise its discretion withrespect to the imposition of such fine (see People v Duquette, 100 AD3d at 1106;People v Domin, 284 AD2d 731, 733 [2001], lv denied 96 NY2d 918[2001], amended 291 AD2d 580 [2002]).
Stein, McCarthy and Spain, JJ., concur. Ordered that the judgment is modified, onthe law, by vacating that portion of the sentence as imposed a fine upon defendant;matter remitted to the County Court of St. Lawrence County for further proceedings notinconsistent with this Court's decision; and, as so modified, affirmed.