| People v Neal |
| 2017 NY Slip Op 02320 [148 AD3d 1699] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Alan D.Neal, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of counsel), fordefendant-appellant.
Alan D. Neal, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), renderedJanuary 10, 2013. The judgment convicted defendant, upon his plea of guilty, of driving whileintoxicated, a class D felony.
It is hereby ordered that the judgment so appealed from is modified on the law and as amatter of discretion in the interest of justice by vacating the fine, and as modified the judgment isaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of drivingwhile intoxicated as a class D felony (Vehicle and Traffic Law §§ 1192 [3];1193 [1] [c] [ii]), defendant contends in his main brief that his plea was not knowing, intelligent,and voluntary because County Court failed to advise him of the amount of the fine to be imposedbefore he pleaded guilty. Although that contention survives defendant's waiver of the right toappeal, defendant failed to move to withdraw the plea or to vacate the judgment of convictionand thus failed to preserve his contention for our review (see People v Watkins, 77 AD3d 1403, 1403 [2010], lv denied15 NY3d 956 [2010]; People vBaker, 49 AD3d 1293, 1293 [2008], lv denied 10 NY3d 932 [2008]). Contraryto defendant's further contention, the court advised him at the time of the plea that it couldimpose a fine in addition to a term of incarceration, and thus preservation was required (see generally People v Murray, 15NY3d 725, 726-727 [2010]).
As the People correctly concede, however, the court erred in imposing a $1,500 fine. Vehicleand Traffic Law § 1193 (1) (c) (ii) provides that a person convicted of driving whileintoxicated as a class D felony "shall be punished by a fine of not less than two thousand dollarsnor more than ten thousand dollars or by a period of imprisonment as provided in the penal law,or by both such fine and imprisonment." The court therefore had the authority to impose a fineand a sentence of imprisonment, but was required to impose a minimum fine of $2,000 if it choseto impose any fine. We cannot allow the $1,500 illegal fine to stand (see generally People vVanValkinburgh, 90 AD3d 1553, 1554 [2011]) and, as a matter of discretion in theinterest of justice, we conclude that no fine should be imposed. We therefore modify thejudgment by vacating the fine.
With respect to the jurisdictional challenges to the felony complaint and his arraignmentthereon in the pro se supplemental brief, "[t]he felony complaint was superseded by theindictment to which defendant pleaded guilty, and he therefore may not challenge the felonycomplaint" (People v Anderson, 90AD3d 1475, 1477 [2011], lv denied 18 NY3d 991 [2012]; see People v Mitchell, 132 AD3d1413, 1416 [2015], lv denied 27 NY3d 1072 [2016]). Defendant's valid waiver of theright to appeal encompasses his challenges in his pro se supplemental brief to the court'ssuppression rulings (see People v Kemp, 94 NY2d 831, 833 [1999]). Furthermore, theremaining contentions in [*2]defendant's pro se supplementalbrief do not " 'implicate the voluntariness of the plea and thus [they are] alsoencompassed by his valid waiver of the right to appeal' " (People v Russell, 128 AD3d 1383,1384 [2015], lv denied 25 NY3d 1207 [2015]).
All concur except NeMoyer and Scudder, JJ., who dissent in part and vote to modify inaccordance with the following memorandum.
NeMoyer and Scudder, JJ. (dissenting). We respectfully dissent in part. Vehicle and TrafficLaw § 1193 (1) (c) (ii) provides that a person convicted of driving while intoxicatedas a class D felony "shall be punished by a fine of not less than two thousand dollars nor morethan ten thousand dollars or by a period of imprisonment as provided in the penal law, or by bothsuch fine and imprisonment."
Here, we agree with the majority that County Court erred in imposing a fine of $1,500, $500less than the minimum prescribed by the statute, and that we cannot allow the illegal fine tostand. We depart from the majority's reasoning, however, with regard to the appropriate remedyfor the illegal sentence. Rather than concluding "as a matter of discretion in the interest ofjustice" that no fine should be imposed in this case, we believe that the fine should be vacatedand that the matter should be remitted to Monroe County Court for resentencing (see People vSmith, 309 AD2d 1282, 1282 [2003]). Present—Whalen, P.J., Smith, Peradotto,NeMoyer and Scudder, JJ.