Opinion
No. 76.
Argued March 25, 2010.
Decided May 11, 2010.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of that Court, entered November 14, 2008. The Appellate Division order, insofar as appealed from, modified, on the law, a judgment of the Onondaga County Court (Anthony F. Aloi, J.), which had convicted defendant, upon his plea of guilty, of vehicular assault in the second degree (two counts) and driving while intoxicated, and had sentenced defendant to two one-year concurrent definite terms for vehicular assault, and a one-year definite term for driving while intoxicated, to be served consecutively. The modification consisted of vacating the sentence and remitting the matter to County Court to resentence defendant or to entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety.
The majority at the Appellate Division concluded that the offense of driving while intoxicated was a material element of the offense of vehicular assault in the second degree, and that, thus, the sentence was illegal insofar as County Court imposed consecutive sentences.
People v Backus, 56 AD3d 1119, reversed.
DJ JA Cirando, Syracuse ( John A. Cirando, Robert A. Durr, Bradley E. Keem and Elizabeth deV. Moeller of counsel), for appellant.
William J. Fitzpatrick, District Attorney, Syracuse ( James P. Maxwell and Victoria M. White of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division, insofar as appealed from, should be reversed, and so much of the order as authorized County Court to entertain a motion by the People to vacate the plea and set aside the conviction should be vacated.
The People have not appealed from so much of the order as vacated the sentence imposed by County Court. We thus have no power to grant the People affirmative relief, and we therefore do not consider the People's argument that the consecutive terms imposed by County Court for vehicular assault and for driving while intoxicated were permissible ( People v Carpenito, 80 NY2d 65, 68). Defendant's sentence having been vacated, County Court is required to resentence defendant in accordance with the law, and lacks power to vacate the conviction or the plea ( Matter of Kisloff v Covington, 73 NY2d 445, 451-452; Matter of Campbell v Pesce, 60 NY2d 165, 169).
Order, insofar as appealed from, reversed and that part of the Appellate Division order that allowed for a motion by the People to vacate the plea and set aside the conviction vacated in a memorandum.