Opinion
315 KA 17–00741
05-03-2019
The PEOPLE of the State of New York, Respondent, v. Raymond CAMPAGNA, Jr., Defendant–Appellant.
HEIDI S. CONNOLLY, SKANEATELES, FOR DEFENDANT–APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (DIANE M. ADSIT OF COUNSEL), FOR RESPONDENT.
HEIDI S. CONNOLLY, SKANEATELES, FOR DEFENDANT–APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (DIANE M. ADSIT OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by 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] ), aggravated vehicular 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 an ignition interlock device with respect to the [aggravated] vehicular [homicide and aggravated vehicular] assault counts is illegal pursuant to Penal Law § 60.21" ( People v. Giacona , 130 A.D.3d 1565, 1566, 14 N.Y.S.3d 850 [4th Dept. 2015] ; see People v. Flagg , 107 A.D.3d 1613, 1614, 967 N.Y.S.2d 577 [2013], lv denied 22 N.Y.3d 1138, 983 N.Y.S.2d 496, 6 N.E.3d 615 [2014] ). As relevant here, the mandatory term of probation with an ignition interlock device pursuant to section 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 A.D.3d at 1566, 14 N.Y.S.3d 850 ; Flagg , 107 A.D.3d at 1614, 967 N.Y.S.2d 577 ). " ‘Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand’ " ( People v. Davis , 37 A.D.3d 1179, 1180, 829 N.Y.S.2d 791 [4th Dept. 2007], lv denied 8 N.Y.3d 983, 838 N.Y.S.2d 487, 869 N.E.2d 663 [2007] ). The proper remedy is to vacate the term of probation imposed on the aggravated vehicular homicide and aggravated vehicular assault counts (see Giacona , 130 A.D.3d at 1566, 14 N.Y.S.3d 850 ; Flagg , 107 A.D.3d at 1614, 967 N.Y.S.2d 577 ), and we therefore modify the judgment accordingly. We note, however, that County Court properly included the ignition interlock condition as a component of the three-year term of probation imposed as part of the sentence on the conviction of misdemeanor driving while intoxicated under Vehicle and Traffic Law § 1192(2) (see Giacona , 130 A.D.3d at 1566, 14 N.Y.S.3d 850 ).
We further conclude that the sentence, as modified, is not unduly harsh or severe.