People v Brothers

2014 NY Slip Op 08682 [123 AD3d 1240]

December 11, 2014

Appellate Division, Third Department

As corrected through Wednesday, January 28, 2015

[*1]

The People of the State of New York, Respondent, vDavid G. Brothers, Appellant.

Lisa A. Burgess, Indian Lake, for appellant.

Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.

Clark, J. Appeal from a judgment of the County Court of Franklin County (Main Jr.,J.), rendered April 29, 2013, convicting defendant upon his plea of guilty of the crime ofaggravated unlicensed operation of a motor vehicle in the first degree.

Defendant was charged with, among other things, one count of aggravatedunlicensed operation of a motor vehicle in the first degree and two counts of drivingwhile intoxicated (hereinafter DWI). After waiving indictment, defendant agreed to beprosecuted by superior court information (hereinafter SCI). Defendant thereafter agreedto plead guilty to aggravated unlicensed operation of a motor vehicle in the first degreeand one count of DWI in full satisfaction of all of the charges. However, during the pleacolloquy, County Court's inquiry only pertained to the aggravated unlicensed operationcount, to which defendant pleaded guilty and waived his right to appeal. Nevertheless,the court imposed a sentence based upon convictions of both aggravated unlicensedoperation and DWI, sentencing defendant to 11/3 to 4 years in prison plusa conditional discharge upon release. Defendant now appeals.

Initially, we disagree with defendant's contention that the SCI was jurisdictionallydefective. Specifically, defendant argues that the SCI failed to allege all materialelements of aggravated unlicensed operation of a motor vehicle in the first degreebecause the People did not state that the crime occurred on a public highway (seeVehicle and Traffic Law § 511 [3] [a]). While this claim survivesdefendant's guilty plea and appeal waiver (see People v Place, 50 [*2]AD3d 1313, 1314 [2008], lv denied 11 NY3d 740[2008]), no defect exists when the SCI incorporates elements by specific reference to thecrime's relevant statutory authority, because such incorporation "constitute[s] allegationsof all the elements of the crime" (People v D'Angelo, 98 NY2d 733, 735 [2002];see People v Binns, 82AD3d 1449, 1450 [2011]), while also giving the defendant "fair notice of thecharges made against him [or her]" (People v Ray, 71 NY2d 849, 850 [1988][internal quotation marks and citation omitted]). Here, although the SCI failed to statethat the road on which defendant was driving was a public highway, it specificallyreferenced Vehicle and Traffic Law § 511 (3) (a) and, as such, sufficientlyincorporated all of the specific elements of the crime.

We do, however, agree with defendant that County Court improperly sentenced himto a conditional discharge while apparently under the mistaken belief that defendant hadalso pleaded guilty to DWI (see Vehicle and Traffic Law § 1192[2]; Penal Law § 60.21). As conceded by the People, conditional dischargeis an impermissible sentence for the crime of aggravated unlicensed operation of a motorvehicle in the first degree (see Vehicle and Traffic Law § 511 [3][b]) and, accordingly, defendant's sentence must be modified.

McCarthy, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgmentis modified, by vacating the sentence of conditional discharge, and, as so modified,affirmed.