Opinion
2013-09-19
The PEOPLE of the State of New York, Respondent, v. Jerome FAULCON, Appellant.
Cliff Gordon, Monticello, appellant pro se. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Cliff Gordon, Monticello, appellant pro se. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: PETERS, P.J., STEIN, McCARTHY and EGAN JR., JJ.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered September 7, 2011, convicting defendant upon his plea of guilty of the crime of aggravated unlicensed operation of a motor vehicle in the first degree (two counts).
Defendant pleaded guilty to an indictment charging him with two counts of aggravated unlicensed operation of a motor vehicle in the first degree. County Court agreed, in return, to sentence him to an aggregate jail term of one year with no fines. While County Court sentenced defendant to the contemplated jail term, it further imposed a fine of $1,000 on each count. Defendant now appeals.
County Court promised defendant that his sentence would not include a fine, but such sentence would have been illegal ( seeVehicle and Traffic Law § 511 [3][b]; People v. Ryan, 83 A.D.3d 1128, 1130, 920 N.Y.S.2d 806 [2011] ). The legal sentence that County Court imposed was inconsistent with that promise. Although defendant failed to preserve this issue by moving to withdraw the plea or vacate the judgment of conviction, the sentence must nevertheless “be vacated, and the matter remitted ... to afford ... defendant the opportunity to accept the sentence that was actually imposed, or permit him to withdraw his plea of guilty”( People v. Figueroa, 82 A.D.3d 1006, 1007, 918 N.Y.S.2d 731 [2011],lv. denied17 N.Y.3d 795, 929 N.Y.S.2d 103, 952 N.E.2d 1098 [2011];see People v. Ryan, 83 A.D.3d at 1130, 920 N.Y.S.2d 806;see also People v. Galietta, 75 A.D.3d 753, 754–755, 904 N.Y.S.2d 804 [2010] ).
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of Ulster County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.