Opinion
2012-10-18
The PEOPLE of the State of New York, Respondent, v. William D. ANDERSON, Appellant.
Teresa C. Mulliken, Harpersfield, for appellant. Mark D. Suben, District Attorney, Cortland (Christine M.R. Ferraro of counsel), for respondent.
Teresa C. Mulliken, Harpersfield, for appellant. Mark D. Suben, District Attorney, Cortland (Christine M.R. Ferraro of counsel), for respondent.
Before: MERCURE, J.P., SPAIN, MALONE JR., KAVANAGH and EGAN JR., JJ.
KAVANAGH, J.
Appeal from a judgment of the County Court of Cortland County (Ames, J.), rendered March 22, 2011, convicting defendant upon his plea of guilty of the crime of driving while intoxicated.
In full satisfaction of a three-count indictment, defendant pleaded guilty to driving while intoxicated as a felony and executed a waiver of the right to appeal. Under the terms of the plea agreement, defendant was to be sentenced to a maximum prison term of 1 1/3 to 4 years which, in County Court's discretion, could be deemed to run consecutively or concurrently with a previously imposed sentence depending upon the information the court received regarding defendant's background at the time sentence was to be imposed. The court thereafter sentenced defendant to a prison term of 1 to 3 years, to run consecutively to the undischarged prison term, and imposed a $2,000 fine. Defendant now appeals.
Defendant argues, and the record confirms, that the imposition of a fine was not part of the plea agreement and defendant was never advised prior to entering the guilty plea that a fine would be imposed as part of his sentence. In addition, while defendant declined County Court's offer to withdraw his plea, that decision was made only after defendant had been advised by the court and his counsel—albeit mistakenly—that the imposition of a fine was mandated by the statute ( seeVehicle and Traffic Law § 1193[1][c] [ii] ). Therefore, defendant's claim regarding the imposition of this part of the sentence survives the waiver of his right to appeal ( see People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992];People v. Greathouse, 62 A.D.3d 1212, 1213, 879 N.Y.S.2d 629 [2009],lv. denied13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016 [2009];People v. Figueroa, 17 A.D.3d 1130, 1130, 794 N.Y.S.2d 262 [2005],lv. denied5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669 [2005] ), and we agree with defendant that, even though he did not seek to vacate his plea, the provision of his sentence imposing a fine must be vacated ( see People v. Figueroa, 17 A.D.3d at 1130, 794 N.Y.S.2d 262;People v. Fehr, 303 A.D.2d 1039, 1040, 757 N.Y.S.2d 205 [2003],lv. denied100 N.Y.2d 538, 763 N.Y.S.2d 3, 793 N.E.2d 417 [2003];People v. Domin, 284 A.D.2d 731, 733, 726 N.Y.S.2d 503 [2001],lv. denied96 N.Y.2d 918, 732 N.Y.S.2d 634, 758 N.E.2d 660 [2001],amended291 A.D.2d 580, 736 N.Y.S.2d 921 [2002] ).
Further, as the People concede, defendant was not sentenced as a second felony offender and the notation to that effect must be removed from the sentencing and commitment form ( see People v. Vasavada, 93 A.D.3d 893, 894, 938 N.Y.S.2d 924 [2012],lv. denied19 N.Y.3d 978, 950 N.Y.S.2d 360, 973 N.E.2d 770 [2012];People v. Hawkins, 70 A.D.3d 1389, 1390, 894 N.Y.S.2d 686 [2010],lv. denied14 N.Y.3d 888, 903 N.Y.S.2d 776, 929 N.E.2d 1011 [2010] ). Finally, defendant's contention regarding the severity of his prison sentence is precluded by his valid waiver of the right to appeal his conviction and sentence ( see People v. Santana, 95 A.D.3d 1503, 1504, 944 N.Y.S.2d 406 [2012];People v. McDonald, 295 A.D.2d 756, 757, 743 N.Y.S.2d 892 [2002],lv. denied98 N.Y.2d 711, 749 N.Y.S.2d 9, 778 N.E.2d 560 [2002] ).
In fact, defendant could not have been sentenced as a second felony offender ( seeVehicle and Traffic Law § 1193[1][c][ii]; People v. Shannon, 89 N.Y.2d 1000, 1001, 657 N.Y.S.2d 394, 679 N.E.2d 633 [1997];People v. Clearwater, 98 A.D.2d 912, 912–913, 470 N.Y.S.2d 934 [1983] ).
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by eliminating the fine and, as so modified, affirmed.
MERCURE, J.P., SPAIN, MALONE JR. and EGAN JR., JJ. concur.