| People v Brainard |
| 2013 NY Slip Op 07881 [111 AD3d 1162] |
| November 27, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RandyC. Brainard, Appellant. |
—[*1] Rosemary Phillips, Canton, for respondent.
McCarthy, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered May 18, 2012, convicting defendant upon his plea of guilty ofthe crime of driving while intoxicated.
In satisfaction of several charges, defendant pleaded guilty to one count of drivingwhile intoxicated, a class E felony (see Vehicle and Traffic Law § 1192[2]).[FN1]County Court sentenced him to a one-year term of interim probation, which included acondition that defendant complete an alcohol dependence treatment program. He failedto meet that condition, resulting in a violation of his interim probation. The court thensentenced defendant to the maximum prison term for an E felony, 1
While this appeal was pending, defendant was released from prison on parolesupervision until the expiration of the maximum term of his sentence of incarceration inJanuary 2016. Upon the recommendation of the St. Lawrence County ProbationDepartment, County [*2]Court sua sponte vacated thesentence of probation and imposed a sentence of conditional discharge for three years,expiring in April 2016, with its only condition being a requirement that defendant installan ignition interlock device within 10 days of being determined eligible for relicensingby the Department of Motor Vehicles and maintain that device for a period of six monthsin any vehicle that he owns or operates.[FN2]
Penal Law § 60.21 does not impose an unconstitutional multiple punishmentfor one crime. The Double Jeopardy Clause of the US Constitution provides threedistinct protections: "against a second prosecution for the same offense after acquittal,""against a second prosecution for the same offense after conviction," and "againstmultiple punishments for the same offense" (North Carolina v Pearce, 395 US711, 717 [1969]; see People vWilliams, 14 NY3d 198, 214 [2010], cert denied 562 US —, 131S Ct 125 [2010]; People v Gonzalez, 99 NY2d 76, 82 [2002]). With regard to thethird category, which defendant raises here, "[a]s long as the Legislature intended toimpose cumulative punishments for a single offense, 'a court's task of statutoryconstruction is at an end' and no constitutional double jeopardy claim is implicated"(People v Gonzalez, 99 NY2d at 82, quoting Missouri v Hunter, 459 US359, 368-369 [1983]).
The Legislature provided that individuals convicted of felony driving whileintoxicated may be punished by a fine within a certain dollar range, imprisonment asprovided in the Penal Law, or both (see Vehicle and Traffic Law § 1193[1] [c] [i]). The fine and prison term imposed by County Court here fall within the rangespermitted by statute (see Vehicle and Traffic Law § 1193 [1] [c] [i]; PenalLaw § 70.00 [2] [e]; [3] [b]). The Legislature also mandated that, "[i]n addition tothe imposition of any fine or period of imprisonment . . . , the court shallalso sentence such person convicted of [driving while intoxicated] to a period ofprobation or conditional discharge," with a condition to install and maintain an ignitioninterlock device (Vehicle and Traffic Law § 1193 [1] [c] [iii]; see PenalLaw § 60.21). Inasmuch as the plain language of the statutes requires a sentencingcourt to impose a period of probation or conditional discharge in addition to any fine orterm of imprisonment for convictions pursuant to Vehicle and Traffic Law § 1192,the Legislature clearly intended this type of cumulative sentence for felony driving whileintoxicated convictions (see Missouri v Hunter, 459 US at 368-369).Accordingly, defendant's sentence does not violate the Double Jeopardy Clause.
County Court has authority to enforce the condition of defendant's conditionaldischarge. The condition is that defendant install and maintain an ignition interlockdevice (see Penal Law § 65.10 [2] [k-1]). If the court has reasonable causeto believe that he has violated that condition, the court may file a declaration ofdelinquency, order defendant to appear and hold a hearing (see CPL 410.30,410.40, 410.70). If the court finds defendant delinquent, it may revoke his conditionaldischarge and impose another sentence, such as a term of probation or a [*3]fine (see People v Brown, 40 Misc 3d 821, 825 [2013]; seealso Penal Law § 60.01 [3], [4]). Thus, the court does have the authority toenforce the terms of the conditional discharge.[FN3]
Because County Court revoked the term of probation and substituted a conditionaldischarge, defendant's remaining arguments are moot.
Peters, P.J., Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Defendant waspreviously convicted of driving while intoxicated in 2003, and has other similarconvictions.
Footnote 2: Defendant appealedfrom his sentence when he received a prison term, fine and probation, but not from theresentencing when the probation was replaced by a conditional discharge. In the interestof judicial economy, we will exercise our discretion and entertain the appeal, despite thenotice of appeal being premature with respect to the resentencing, especially consideringthat defendant had already perfected this appeal before the resentencing occurred (see People v Therrien, 78AD3d 1331, 1332 [2010]).
Footnote 3: Additionally, operationof a vehicle without a court-ordered ignition interlock device is a class A misdemeanor(see Vehicle and Traffic Law § 1198 [9] [d], [e]), which would subjectdefendant to further punishment upon conviction.