| People v Olmstead |
| 2013 NY Slip Op 07771 [111 AD3d 1065] |
| November 21, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vStephen G. 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 August 15, 2012, which revoked defendant's probation andimposed a sentence of incarceration.
In 2011, defendant pleaded guilty to misdemeanor driving while intoxicated and wassentenced to 30 days in jail and three years of probation. He was also ordered to pay a$1,000 fine as well as fees and surcharges. After defendant admitted to violatingconditions of his probation, his probationary sentence was vacated and he was sentencedto one year in jail, with the unpaid fine, surcharges and fees remaining as part of hissentence. Defendant appeals.
Because defendant has completed serving his one-year jail term, his sole claim onthis appeal—that the jail time imposed was harsh and excessive—is moot(see People v Fusco, 91AD3d 984, 985 [2012]; People v Nieves, 89 AD3d 1285, 1287 [2011]). However,given our finding in a companion appeal that County Court may have misapprehended itsability to exercise discretion when it imposed a fine as part of defendant's originalsentence on the driving while intoxicated conviction (People v Olmstead, 111AD3d 1063 [2013] [decided herewith]), and inasmuch asthat fine remained part of defendant's sentence upon his violation of probation, we mustvacate that portion of the sentence herein that continued the fine and remit the matter forfurther proceedings on this issue.[*2]
Stein, McCarthy and Spain, JJ., concur. Orderedthat the judgment is modified, on the law, by vacating that portion of the sentence thatcontinued the fine; matter remitted to the County Court of St. Lawrence County forfurther proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.