Opinion
2013-03-15
The PEOPLE of the State of New York, Respondent, v. Chauncey K. DEXTER, Defendant–Appellant.
Wagner & Hart, LLP, Olean (Janine Fodor of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Elizabeth Ensell of Counsel), for Respondent.
Wagner & Hart, LLP, Olean (Janine Fodor of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Elizabeth Ensell of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of driving while intoxicated (DWI) as a class E felony (Vehicle and Traffic Law §§ 1192[2]; 1193[1][c][i] ). Defendant was sentenced to an indeterminate term of 1 to 3 years of incarceration followed by a one-year period of conditional discharge with an ignition interlock device requirement. Contrary to the contention of defendant, his sentence is not unconstitutionally disproportionate to his offense. Although the Court of Appeals in People v. Broadie, 37 N.Y.2d 100, 111, 371 N.Y.S.2d 471, 332 N.E.2d 338,cert. denied423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 recognized that “a sentence that is ‘grossly disproportionate to the crime’ may be considered cruel and unusual punishment” ( People v. Holmquist, 5 A.D.3d 1041, 1042, 773 N.Y.S.2d 682,lv. denied2 N.Y.3d 800, 781 N.Y.S.2d 300, 814 N.E.2d 472), we conclude that this is not one of those rare cases described in Broadie. Defendant failed to preserve for our review his further contention that the imposition of consecutive sentences of imprisonment and conditional discharge with an ignition interlock device are unconstitutional multiple punishments under Penal Law § 60.21 and Vehicle and Traffic Law §§ 1193 and 1198 ( see People v. Rivera, 9 N.Y.3d 904, 905, 843 N.Y.S.2d 532, 875 N.E.2d 24;see also People v. Davidson, 98 N.Y.2d 738, 739–740, 751 N.Y.S.2d 161, 780 N.E.2d 972), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see People v. Farrelly, 92 A.D.3d 1290, 1291, 938 N.Y.S.2d 489,lv. denied19 N.Y.3d 996, 951 N.Y.S.2d 472, 975 N.E.2d 918).
The sentence is not unduly harsh or severe, particularly in light of defendant's three prior felony DWI convictions ( see People v. Edenholm, 9 A.D.3d 892, 893, 779 N.Y.S.2d 688). We note, however, that the one-year period of conditional discharge imposed by County Court is illegal inasmuch as Penal Law § 65.05(3)(a) provides that such period “shall be” three years for felony offenses, and “[n]either County Court nor this Court possesses interest of justice jurisdiction to impose a sentence less than the mandatory statutory minimum” ( People v. Clark, 176 A.D.2d 1206, 1206–1207, 576 N.Y.S.2d 704,lv. denied79 N.Y.2d 854, 580 N.Y.S.2d 726, 588 N.E.2d 761;see generally People v. Vidaurrazaga, 100 A.D.3d 664, 665, 953 N.Y.S.2d 290). “ ‘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,lv. denied8 N.Y.3d 983, 838 N.Y.S.2d 487, 869 N.E.2d 663). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court to afford defendant the opportunity to accept an amended lawful sentence or to withdraw his guilty plea and thus be restored to his preplea status ( see People v. Eron, 79 A.D.3d 1774, 1775–1776, 914 N.Y.S.2d 849).
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Cattaraugus County Court for further proceedings.