| People v Considine |
| 2018 NY Slip Op 08834 [167 AD3d 1554] |
| December 21, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Martin Considine, II, Appellant. |
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of counsel), fordefendant-appellant.
Caroline A. Wojtaszek, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Niagara County (Richard C. Kloch, Sr.,A.J.), rendered November 14, 2017. The judgment convicted defendant, upon his plea of guilty,of driving while intoxicated, a class E felony.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence and as modified the judgment is affirmed and the matter is remitted toSupreme Court, Niagara County, for further proceedings in accordance with the followingmemorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, ofdriving while intoxicated as a class E felony (Vehicle and Traffic Law §§ 1192[3]; 1193 [1] [c] [i] [A]). Defendant was sentenced to an indeterminate term of 1 to 3 years'imprisonment, a consecutive one-year conditional discharge, and a fine of $1,000. That sentenceis illegal because the conditional discharge term must be three years under these circumstances(see Penal Law §§ 60.21, 65.05 [3] [a]; Vehicle and Traffic Law§ 1193 [1] [c] [iii]). Although the issue is not raised by either party, we cannotallow an illegal sentence to stand (seePeople v Southard, 163 AD3d 1461, 1461 [4th Dept 2018]; People v Sellers, 222AD2d 941, 941 [3d Dept 1995]). We therefore vacate the sentence and remit the matter toSupreme Court to afford defendant the opportunity to either withdraw his plea or be resentencedto the legal term of conditional discharge (see Sellers, 222 AD2d at 941; see generally People v Ciccarelli, 32AD3d 1175, 1176 [4th Dept 2006]). Defendant's appellate contentions are academic in lightof our determination. Present—Smith, J.P., Lindley, DeJoseph, NeMoyer and Curran,JJ.