| People v Scholz |
| 2015 NY Slip Op 01332 [125 AD3d 1492] |
| February 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v James H. Scholz, Appellant. (Appeal No.2.) |
Adam H. Van Buskirk, Auburn, for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel),for respondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.),rendered May 28, 2013. The judgment convicted defendant, upon his plea of guilty, ofdriving while intoxicated, a misdemeanor, and criminal possession of a controlledsubstance in the seventh degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In these four appeals, defendant appeals from judgments convictinghim upon his plea of guilty of, inter alia, driving while intoxicated as a misdemeanor(Vehicle and Traffic Law § 1192 [3]), burglary in the third degree (PenalLaw § 140.20) and criminal contempt in the second degree(§ 215.50 [3]). The charges arose from four separate indictments filedagainst defendant for crimes he committed over a period of approximately two years.Consistent with the terms of the plea agreement, County Court sentenced defendant toconcurrent terms of imprisonment. For the driving while intoxicated conviction, the courtsentenced defendant to time served along with 36 months of ignition interlock device(IID) probation, to commence upon defendant's release from prison.
We note at the outset that we dismiss the appeals from the judgments in appeal Nos.1, 3 and 4 because defendant raises no contentions with respect thereto (see generallyPeople v Minemier [appeal No. 1], 124 AD3d 1408 [2015]). We reject defendant'scontention in appeal No. 2 that the court erred in directing that the IID probationcommence upon his release from prison. Penal Law § 60.21 provides that,when a person is to be sentenced for driving while intoxicated, "the court may sentencesuch person to a period of imprisonment authorized by article seventy of this title andshall sentence such person to a period of probation or conditional discharge inaccordance with the provisions of section 65.00 of this title and shall order theinstallation and maintenance of a functioning [IID]." The statute further provides that"[s]uch period of probation or conditional discharge shall run consecutively to anyperiod of imprisonment and shall commence immediately upon such person's releasefrom imprisonment" (emphasis added). We interpret the phrase "any period ofimprisonment" to mean any period of imprisonment imposed on any offense, and not, asdefendant suggests, any period of imprisonment imposed for driving while intoxicated.Thus, we conclude that the court properly directed that defendant's term of IID probationfor driving while intoxicated run consecutively to the sentences imposed for the othercounts.
We have reviewed defendant's remaining contentions in appeal No. 2 and concludethat they lack merit. Present—Scudder, P.J., Smith, Centra, Lindley and Valentino,JJ.