Opinion
April 14, 1989
Appeal from the Cattaraugus County Court, Kelly, J.
Present — Dillon, P.J., Callahan, Green, Pine and Lawton, JJ.
Motion to relieve counsel granted (see, People v. Crawford, 71 A.D.2d 38), and motion for new counsel denied. Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: Defendant pleaded guilty to five counts of an eight-count indictment arising from two incidents in which he was allegedly driving while intoxicated. With respect to one incident, he pleaded guilty to both statutory and common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [former (2), (3)]) and aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [a]). With respect to the other incident, he pleaded guilty to common-law driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree. He was sentenced to concurrent terms of incarceration of 1 1/3 to 4 years on each count of driving while intoxicated and six months on each count of aggravated unlicensed operation of a motor vehicle. He also was fined $500 on each of the five counts.
Defendant filed a supplemental pro se brief after his assigned counsel filed a Crawford brief. Defendant joins in counsel's motion to be relieved of the assignment, but he seeks appointment of new counsel. Defendant in his pro se brief contends, and the People concede, that the fines imposed for violation of Vehicle and Traffic Law § 511 (3) (a) violate Penal Law § 80.15 (see, People v. Grader, 142 A.D.2d 997). We further find that imposition of fines for both statutory and common-law driving while intoxicated, arising from the same act, likewise violates Penal Law § 80.15. We therefore vacate the fines imposed under counts 1, 3 and 6 of the indictment.
We have examined the record, and we find no other nonfrivolous issue requiring the appointment of substitute counsel.