| People v Boldt |
| 2020 NY Slip Op 04284 [185 AD3d 1551] |
| July 24, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jonathan E. Boldt, Appellant. |
Leanne Lapp, Public Defender, Canandaigua (Mollie Dapolito of counsel), Davison LawOffice PLLC, for defendant-appellant.
James B. Ritts, District Attorney, Canandaigua (V. Christopher Eaggleston of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Brian D. Dennis, J.), renderedFebruary 6, 2019. 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 affirmed and thematter is remitted to Ontario County Court for further proceedings pursuant to CPL 460.50(5).
Memorandum: In July 2015, defendant pleaded guilty to two counts of felony driving whileintoxicated (DWI) (Vehicle and Traffic Law §§ 1192 [2], [3]; 1193 [1] [c] [i][A]) and one count of felony driving while ability impaired by the combined influence of drugsor of alcohol and any drug or drugs (DWAI) (§§ 1192 [4-a]; 1193 [1] [c] [i][A]). County Court sentenced defendant to six months of imprisonment and five years ofprobation on each count. Several years later, after serving the imprisonment portion of hissentence, defendant admitted that he had violated the conditions of his probation. He nowappeals from a judgment that revoked his sentence of probation and sentenced him to concurrentindeterminate terms of imprisonment. We affirm.
As a preliminary matter, although the notice of appeal states that defendant is appealing"from a guilty plea" and "his sentence, thereupon," we exercise our discretion to treat the appealas taken from the judgment revoking defendant's sentence of probation and imposing a sentenceof imprisonment (see CPL 460.10 [6]; see generally People v Hennigan, 145 AD3d 1528, 1528 [4th Dept2016], lv denied 29 NY3d 998 [2017]).
Defendant contends that his original sentence was not a traditional split sentence under PenalLaw § 60.01 (2) (d). It is his position that the court imposed a sentence undersection 60.21 with respect to the DWI counts and, because he believes that the court ordered thatthe sentences imposed on each count were to run concurrently with each other, defendant alsotakes the position that the court effectively directed that the period of probation was to runconsecutively to the period of imprisonment for each count, including the DWAI count. Courtshave held that, where a defendant is originally sentenced pursuant to section 60.21 and then laterviolates the terms of his or her probation or conditional discharge after fully serving his or herterm of incarceration, the defendant cannot be sentenced to an additional term of incarcerationwithout violating the rule against multiple punishments for the same offense (see People v Arvidson, 159 AD3d1198, 1198-1199 [3d Dept 2018];People v Zirbel, 159 AD3d 1545, 1546-1547 [4th Dept 2018]; People v Coon, 156 AD3d 105,106-108 [3d Dept 2017], lv denied 31 NY3d 1080 [2018]; see generally People v Biggs, 1 NY3d225, 228-229 [2003]). Defendant thus contends that, inasmuch as he completed theimprisonment portion of his original sentence, the court was not authorized to impose anadditional sentence of imprisonment upon his admission that he violated the conditions of hisprobation. We reject that contention.
Contrary to defendant's contention, he was not originally sentenced to a term ofimprisonment under Penal Law § 60.21 with respect to any of the three counts. Thatsection provides, in pertinent part, that "[n]otwithstanding [section 60.01 (2) (d)], when a personis to be sentenced upon a conviction for a violation of [Vehicle and Traffic Law§ 1192 (2), (2-a) or (3)], the court may sentence such person to a period ofimprisonment authorized by article seventy of this title and shall sentence such person toa period of probation or conditional discharge" (§ 60.21 [emphasis added]). Theprobation or conditional discharge imposed pursuant to section 60.21 is to run consecutively toany period of imprisonment imposed pursuant to article 70. Here, however, defendant was notsentenced to a period of imprisonment pursuant to Penal Law article 70. Rather, he wassentenced on each count to a traditional split sentence pursuant to Penal Law§ 60.01 (2) (d), with the period of probation running concurrently with the period ofimprisonment. Thus, Penal Law § 60.21 is inapplicable to this case and does notpreclude the imposition of a sentence of imprisonment upon the revocation of probation (cf.Zirbel, 159 AD3d at 1546-1547; Coon, 156 AD3d at 106-108). We note that where,as was originally the case here, a court chooses to impose a split sentence under Penal Law§ 60.01 (2) (d), or chooses to impose a sentence of probation only, it may impose anignition interlock device as a condition of probation (see § 65.10 [1]).
Contrary to defendant's further contention, the sentence is not unduly harsh or severe.Present—Centra, J.P., Carni, Lindley, Curran and Troutman, JJ.