| People v Giacona |
| 2015 NY Slip Op 06075 [130 AD3d 1565] |
| July 10, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vPeter Giacona, Appellant. (Appeal No. 1.) |
J. Scott Porter, Seneca Falls, for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Brian Leeds of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.),rendered January 29, 2013. The judgment convicted defendant, upon his plea of guilty,of criminal sale of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of criminal sale of a controlled substance in the third degree(Penal Law § 220.39 [1]). In appeal No. 2, defendant appeals from ajudgment convicting him upon his plea of guilty of two counts of vehicular assault in thesecond degree (§ 120.03 [1]), and one count each of driving whileintoxicated (Vehicle and Traffic Law § 1192 [3]), and reckless driving(§ 1212). In appeal Nos. 3 through 6, defendant appeals from four ordersdirecting him to pay restitution to the two car accident victims and the hospital thattreated them in connection with the judgment of conviction in appeal No. 2.
With respect to the judgments in appeal Nos. 1 and 2, our review of County Court'sdenial of defendant's request for youthful offender treatment is precluded by his waiverof the right to appeal, the validity of which he does not contest (see People v Pacherille, 25NY3d 1021, 1024 [2015]). However, we agree with defendant in appeal No. 2, andthe People correctly concede, that his challenge to the legality of the sentence is notforeclosed by the valid waiver of the right to appeal (see People v Graves, 96 AD3d 1466, 1466-1467 [2012],lv denied 19 NY3d 1026 [2012]). Turning to the merits, defendant contends, andthe People further correctly concede, that the imposition of a five-year term of probationwith an ignition interlock device with respect to the vehicular assault counts is illegalpursuant to Penal Law § 60.21 (see People v Flagg, 107 AD3d 1613, 1614 [2013], lvdenied 22 NY3d 1138 [2014]), and we therefore modify the judgment accordingly.Pursuant to section 60.21, the mandatory five-year term of probation with an ignitioninterlock device only applies to a defendant convicted of a violation of Vehicle andTraffic Law § 1192 (2), (2-a) or (3) (see Flagg, 107 AD3d at 1614).Here, the proper remedy is to vacate the term of probation imposed on the vehicularassault counts (see id.). We note, however, that the court properly imposed theignition interlock condition as a component of the three-year term of probation on theconviction under Vehicle and Traffic Law § 1192 (3). In addition, we agreewith the People that the order of commitment must be amended to reflect that defendant'sterm of postrelease probation is a period of three years to commence immediately upondefendant's release from imprisonment (see Penal Law § 60.21; see generally People v Brooks,46 AD3d 1374, 1374 [2007]).
With respect to appeal Nos. 3 through 6, we reject defendant's contention that thecourt erred in ordering him to pay restitution to the treating hospital for the costs ofmedical care of the victims injured as a result of defendant's crimes (see generallyPeople v McDaniel, 219 AD2d 861, 861-862 [1995], lv denied 88 NY2d 850[1996]). We reject defendant's further contention that the court [*2]erred in ordering restitution in an amount over $15,000,and we conclude that the court properly exercised its discretion in orderingreimbursement for medical expenses actually incurred by the victims injured as a resultof defendant's crimes (see Penal Law § 60.27 [5] [b]). Finally,defendant's contention that one of the injured victims was required to submit medicalbills to a no-fault insurer in lieu of restitution is without merit (see People v Wilson, 108AD3d 1011, 1013 [2013]; People v Whitmore, 234 AD2d 1008, 1008[1996]; McDaniel, 219 AD2d at 861).
We have considered defendant's remaining contentions concerning restitution andconclude that they are without merit. Present—Centra, J.P., Carni, Lindley andDeJoseph, JJ.