People v Zirbel

2018 NY Slip Op 02064 [159 AD3d 1545]

March 23, 2018

Appellate Division, Fourth Department

As corrected through Wednesday, May 2, 2018

[*1]

The People of the State of New York,Respondent, v Claude E. Zirbel, Appellant.

David P. Elkovitch, Auburn, for defendant-appellant.

Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.

Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), renderedDecember 6, 2016. The judgment revoked defendant's sentence of probation and imposed asentence of imprisonment.

It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence imposed and as modified the judgment is affirmed, and the matter isremitted to Cayuga County Court for resentencing.

Memorandum: In 2011, defendant pleaded guilty to driving while intoxicated (DWI) as aclass D felony and aggravated unlicensed operation of a motor vehicle in the first degree, and hewas sentenced to concurrent indeterminate terms of imprisonment of 11/3 to 4years, to be followed by five years of probation. With respect to the probation portion of thesentence, County Court also imposed the condition of an ignition interlock device. After servinga full four years, defendant violated his probation when he was caught in possession of alcoholduring a home visit by his parole officer. Defendant admitted to the violation, his probation wasrevoked, and then he was restored to probation with credit for the time already served onprobation, with all other conditions remaining the same. Over a year later, defendant was againbrought before the court for a violation of probation after he was arrested for, inter alia,aggravated unlicensed operation of a motor vehicle in the first degree, felony driving whileintoxicated, refusal to take a breath test, and operating a vehicle without an ignition interlockdevice. The People, noting that this was defendant's second violation, requested the maximumprison sentence for the violation, i.e., 21/3 to 7 years of imprisonment.

At subsequent appearances, defense counsel took the position that, because defendant"maxed out his underlying time," he could not then be sentenced to additional prison time for theprobation violation. He further argued that the period of probation or conditional discharge setforth in Penal Law § 60.21, pursuant to which he was sentenced, "is exclusively forpurposes of monitoring the ignition interlock device." The People disagreed, arguing thatdefendant "did not max out his time, because he got less than the maximum the first time around.He only got one and [a] third to four. He was facing, on a D felony, two and [a] third to seven. Soit's [the People's] position that he can get the two and a third to seven at this point in time." Thecourt agreed with the People and sentenced defendant to 21/3 to 7 years ofimprisonment, to be followed by five years of probation. Defendant appeals.

We agree with defendant that the court lacked the authority to sentence him to more prisontime after his initial term of imprisonment was completed (see People v Coon, 156 AD3d 105, 106-110 [3d Dept 2017]).

The facts of Coon are nearly indistinguishable from those herein. In Coon, thedefendant pleaded guilty to felony DWI and was sentenced to a definite jail term of one year,followed by three years of conditional discharge, pursuant to Penal Law § 60.21.After defendant served his [*2]entire prison term and while hewas under the conditional discharge, defendant admitted to violating the conditional discharge byoperating a vehicle without an ignition interlock device (id. at 106). County Courtrevoked defendant's conditional discharge and sentenced him to "an additional term ofimprisonment of 2 to 6 years 'for [the] initial conviction of [DWI],' to be followed by three yearsof conditional discharge" (id.). The Third Department modified the judgment by vacatingthe sentence and remitted the matter to County Court for resentencing. The Third Departmentheld that, "where [the defendant] has already served and completed the one-year definite sentenceimposed for the DWI conviction, County Court was not authorized to impose an additional termof imprisonment upon his violation of the conditional discharge terms" (id. at 107). Inreaching that conclusion, the Third Department noted that "[t]he statutory framework governingsentencing does not cover these factual circumstances," and there were "no correspondingstatutes or amendments to already existing statutes that delineated the types of sanctions thatcourts could impose in a case such as this one" (id. at 108-109).

While here defendant was sentenced to an indeterminate term of imprisonment followed byprobation instead of a definite jail term followed by a conditional discharge, we conclude thatthose distinctions are immaterial. Defendant served the maximum term of imprisonmentimposed, i.e., four years on his sentence of 11/3 to 4 years, and we conclude that hecannot be subjected to additional prison time under the guise of a sentence based on a probationor conditional discharge violation when, in fact, he was resentenced for the initial offense. Wetherefore modify the judgment by vacating the sentence, and we remit the matter to County Courtfor resentencing. In light of our determination, we do not address defendant's remainingcontention. Present—Smith, J.P., Centra, Peradotto, DeJoseph and Curran,JJ.