| People v Campagna |
| 2019 NY Slip Op 03495 [172 AD3d 1904] |
| May 3, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Raymond Campagna, Jr., Appellant. |
Heidi S. Connolly, Skaneateles, for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Diane M. Adsit of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), renderedJanuary 24, 2017. The judgment convicted defendant, upon his plea of guilty, of aggravatedvehicular homicide, aggravated vehicular assault, driving while intoxicated, a misdemeanor, andreckless driving.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the term of probation imposed on counts one and five of the amended indictment,and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of,inter alia, aggravated vehicular homicide (Penal Law § 125.14 [5]), aggravatedvehicular assault (§ 120.04-a [4]), and driving while intoxicated as a misdemeanor(Vehicle and Traffic Law §§ 1192 [2]; 1193 [1] [b] [i]).
Preliminarily, we conclude that "the imposition of a five-year term of probation with anignition interlock device with respect to the [aggravated] vehicular [homicide and aggravatedvehicular] assault counts is illegal pursuant to Penal Law § 60.21" (People v Giacona, 130 AD3d1565, 1566 [4th Dept 2015]; seePeople v Flagg, 107 AD3d 1613, 1614 [2013], lv denied 22 NY3d 1138 [2014]).As relevant here, the mandatory term of probation with an ignition interlock device pursuant tosection 60.21 applies only to a defendant convicted of a violation of Vehicle and Traffic Law§ 1192 (2), (2-a) or (3) (see Giacona, 130 AD3d at 1566; Flagg, 107AD3d at 1614). " 'Although this issue was not raised before the [sentencing] court or onappeal, we cannot allow an [illegal] sentence to stand' " (People v Davis, 37 AD3d 1179,1180 [4th Dept 2007], lv denied 8 NY3d 983 [2007]). The proper remedy is to vacate theterm of probation imposed on the aggravated vehicular homicide and aggravated vehicularassault counts (see Giacona, 130 AD3d at 1566; Flagg, 107 AD3d at 1614), andwe therefore modify the judgment accordingly. We note, however, that County Court properlyincluded the ignition interlock condition as a component of the three-year term of probationimposed as part of the sentence on the conviction of misdemeanor driving while intoxicatedunder Vehicle and Traffic Law § 1192 (2) (see Giacona, 130 AD3d at1566).
We further conclude that the sentence, as modified, is not unduly harsh or severe.Present—Centra, J.P., Peradotto, DeJoseph and Winslow, JJ.