Opinion
No. KA 07-02090.
March 21, 2008.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered July 18, 2007. The judgment convicted defendant, upon his plea of guilty, of felony driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the third degree.
SHIRLEY A. GORMAN, ALBION, FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (DAVID E. GANN OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Martoche, Smith, Green and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law by vacating the sentence imposed for aggravated unlicensed operation of a motor vehicle in the third degree and as modified the judgment is affirmed, and the matter is remitted to Genesee County Court for resentencing on that offense.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of felony driving while intoxicated (Vehicle and Traffic Law § 1192; § 1193 [1] [c] [former (ii)]) and aggravated unlicensed operation of a motor vehicle in the third degree (§ 511 [1]). Contrary to defendant's contention, the bargained-for sentence of incarceration imposed by County Court is not unduly harsh or severe. "We are constrained, however, to vacate the sentence" imposed for aggravated unlicensed operation of a motor vehicle in the third degree ( People v John, 288 AD2d 848, 850, lv denied 97 NY2d 705; see People v Figueroa, 17 AD3d 1130, 1131, lv denied 5 NY3d 788 [2005]; People v Fehr, 303 AD2d 1039, 1040, lv denied 100 NY2d 538). The comments of the court in imposing a $200 fine with respect to that offense reflect "`the court's misapprehension that it had no ability to exercise its discretion' in determining whether to impose a fine" ( John, 288 AD2d at 850). We therefore modify the judgment accordingly, and we remit the matter to County Court for resentencing on that offense.