Opinion
2013-02-1
The PEOPLE of the State of New York, Respondent, v. Randa BILLS, Defendant–Appellant.
Carr Saglimben LLP, Olean (Jay D. Carr of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
Carr Saglimben LLP, Olean (Jay D. Carr of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting her, upon her plea of guilty, of two counts of driving while intoxicated as a felony (Vehicle and Traffic Law §§ 1192[2]; 1193[1][c] ). Although defendant validly waived her right to appeal, we agree with defendant that her sentence must be vacated because the record establishes that County Court misapprehended its discretion in imposing a $1,000 fine on each count ( see People v. Figueroa, 17 A.D.3d 1130, 1131, 794 N.Y.S.2d 262,lv. denied5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669;People v. John, 288 A.D.2d 848, 850, 732 N.Y.S.2d 505,lv. denied97 N.Y.2d 705, 739 N.Y.S.2d 106, 765 N.E.2d 309). The court's statement, “I will have to fine you,” reflects “the court's misapprehension that it had no ability to exercise its discretion in determining whether to impose a fine” ( People v. Kropp, 49 A.D.3d 1339, 1340, 854 N.Y.S.2d 273 [internal quotation marks omitted]; see Figueroa, 17 A.D.3d at 1131, 794 N.Y.S.2d 262;People v. Fehr, 303 A.D.2d 1039, 1040, 757 N.Y.S.2d 205,lv. denied100 N.Y.2d 538, 763 N.Y.S.2d 3, 793 N.E.2d 417). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing. In light of our determination, we do not address defendant's remaining contention.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence imposed and as modified the judgment is affirmed, and the matter is remitted to Cattaraugus County Court for resentencing.