Opinion
746 KA 17-00904
11-12-2021
The PEOPLE of the State of New York, Respondent, v. Shawn A. BEMBRY, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by reversing that part convicting defendant of count four of the indictment, vacating the plea with respect to that count and dismissing that count, and vacating the fine imposed on count one of the indictment and imposing a fine in the sum of $500 on count two of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, driving while intoxicated as a class E felony ( Vehicle and Traffic Law §§ 1192 [3] ; 1193 [1] [c] [i] [A]), aggravated unlicensed operation of a motor vehicle in the first degree ( § 511 [3] [a] [i] ), and "Refusal to Take Breath Test" (§ 1194 [1] [b]). County Court sentenced defendant to, among other things, a fine in the sum of $1,000 on count one, driving while intoxicated, but did not impose a fine on count two, aggravated unlicensed operation of a motor vehicle, and the court imposed concurrent indeterminate terms of incarceration on those two counts of the indictment. On appeal, defendant contends that the imposition of the fine on count one is unduly harsh and severe.
Initially, we note that the sentence imposed on count two of the indictment is illegal because a fine of between $500 and $5,000 is mandatory upon a conviction of aggravated unlicensed operation of a motor vehicle in the first degree, even where, as here, the court also imposes a sentence of incarceration (see Vehicle and Traffic Law § 511 [3] [b] ; People v. Eron , 79 A.D.3d 1774, 1775, 914 N.Y.S.2d 849 [4th Dept. 2010] ; People v. Barber , 31 A.D.3d 1145, 1145-1146, 818 N.Y.S.2d 391 [4th Dept. 2006] ). Furthermore, "[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 [4th Dept. 1991], lv denied 79 N.Y.2d 854, 580 N.Y.S.2d 726, 588 N.E.2d 761 [1992] ; see People v. Dexter , 104 A.D.3d 1184, 1185, 960 N.Y.S.2d 773 [4th Dept. 2013] ). " ‘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 [4th Dept. 2007], lv denied 8 N.Y.3d 983, 838 N.Y.S.2d 487, 869 N.E.2d 663 [2007] ; see People v. Campagna , 172 A.D.3d 1904, 1905, 97 N.Y.S.3d 917 [4th Dept. 2019] ). "In the interest of judicial economy, we exercise our inherent authority to correct the illegal sentence" ( People v. Perrin , 94 A.D.3d 1551, 1551, 942 N.Y.S.2d 916 [4th Dept. 2012] ), and we therefore modify the judgment by imposing the statutory minimum fine in the sum of $500 on count two of the indictment, in addition to the previously imposed parts of the sentence on that count.
We agree with defendant that the sentence, as modified, is unduly harsh and severe insofar as it imposes a fine of $1,000 on count one of the indictment. Consequently, we further modify the judgment as a matter of discretion in the interest of justice by vacating the fine imposed on that count.
Finally, we note that the Appellate Term, Second Department, has repeatedly stated that a defendant's "refusal to submit to a breath test did not establish a ‘cognizable offense’ " ( People v. Malfetano , 64 Misc. 3d 135[A], 116 N.Y.S.3d 851, 2019 Slip. Op. 51147[U], *2 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2019] ; see People v. Villalta , 56 Misc. 3d 59, 60-61, 57 N.Y.S.3d 335 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2017], lv denied 29 N.Y.3d 1135, 64 N.Y.S.3d 685, 86 N.E.3d 577 [2017] ; People v. Wrenn , 52 Misc. 3d 141[A], 43 N.Y.S.3d 769, 2016 N.Y. Slip. Op. 51193[U], *2-3 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2016], lv denied 28 N.Y.3d 1032, 45 N.Y.S.3d 384, 68 N.E.3d 113 [2016] ; see generally People v. Thomas , 46 N.Y.2d 100, 108, 412 N.Y.S.2d 845, 385 N.E.2d 584 [1978], appeal dismissed 444 U.S. 891, 100 S.Ct. 197, 62 L.Ed.2d 127 [1979] ). We agree, and we therefore further modify the judgment by reversing that part convicting defendant of count four of the indictment, vacating the plea with respect to that count of the indictment and dismissing that count.