Opinion
KA 99-05098
October 2, 2003.
Appeal from those parts of a judgment of Ontario County Court (Harvey, J.), entered January 28, 1999, convicting defendant after a jury trial of driving while intoxicated as a felony (two counts).
FIANDACH FIANDACH, ROCHESTER (EDWARD L. FIANDACH OF COUNSEL), FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice by vacating the finding that defendant is a persistent felony offender and reducing the sentence imposed on each count of driving while intoxicated as a class D felony to an indeterminate term of incarceration of 2 1/3 to 7 years and as modified the judgment is affirmed.
Memorandum:
Defendant appeals from those parts of a judgment convicting him after a jury trial of two counts of driving while intoxicated as a class D felony (Vehicle and Traffic Law 1192, [3]; 1193 [1] [c] [ii]) and sentencing him, as a persistent felony offender ( see Penal Law 70.10 [a]), to an indeterminate term of incarceration of 16 years to life on each count, to run concurrently. Defendant presented evidence after County Court denied his motion to dismiss based on the legal insufficiency of the evidence at the close of the People's case and failed to renew his motion to dismiss on that ground at the close of his case. Thus, defendant waived his present challenge to the legal sufficiency of the evidence ( see People v Hines, 97 N.Y.2d 56, 61, rearg denied 97 N.Y.2d 678). The court's Sandoval ruling does not constitute an abuse of discretion ( see People v. Moore, 202 A.D.2d 966, lv denied 83 N.Y.2d 913). We reject the contentions of defendant that the imposition of persistent felony offender status constitutes cruel and unusual punishment ( see People v Turner, 234 A.D.2d 704, 707) and violates his right to equal protection of the laws ( see People v. Bowers, 201 A.D.2d 830, lv denied 83 N.Y.2d 909; People v. Clearwater, 98 A.D.2d 912). As a matter of discretion in the interest of justice, however, we modify the judgment by vacating the finding that defendant is a persistent felony offender and reducing the sentence imposed on each count to an indeterminate term of incarceration of 2a to 7 years.