Opinion
March 3, 1994
Appeal from the County Court of Montgomery County (Aison, J.).
On January 4, 1991, defendant was convicted and sentenced, in absentia, to a prison term of 1 1/3 to 4 years and a $3,000 fine for each of two counts of driving while intoxicated, 1 1/3 to 4 years with no fine for aggravated unlicensed operation of a motor vehicle in the first degree, and 15 days for failure to keep right. County Court directed that all sentences were to run concurrently. Defendant took an appeal to this Court and we modified defendant's judgment of conviction by reversing one of his two convictions for driving while intoxicated (Vehicle and Traffic Law former § 1192 [2]) and remitted to County Court for further proceedings ( 180 A.D.2d 876).
At his resentencing on March 18, 1992, defendant was resentenced to 1 1/3 to 4 years with a $3,000 fine for the remaining driving while intoxicated conviction, 1 1/3 to 4 years with a $3,000 fine for aggravated unlicensed operation of a motor vehicle in the first degree and 15 days for failure to keep right. Once again, County Court directed that all sentences were to run concurrently.
On this appeal, defendant contends that County Court failed to order the required update of his original December 1990 presentence report for the resentencing (see, People v. Halaby, 77 A.D.2d 717, 718) and that the second fine should be eliminated pursuant to Penal Law former § 80.15. By failing to make an appropriate objection at the resentencing or a motion to vacate the resentence, defendant has failed to preserve his first claim for appellate review (see, People v. Schneider, 188 A.D.2d 754, 757, lv denied 81 N.Y.2d 892; People v. Walworth, 167 A.D.2d 622; People v. Dowdell, 72 A.D.2d 622).
Addressing defendant's second contention, we agree that County Court erred in imposing a $3,000 fine on both the conviction for driving while intoxicated (Vehicle and Traffic Law former § 1192 [3]) and aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511) for a total assessment of $6,000, as that sentence was illegal under Penal Law former § 80.15, which was effective on September 5, 1987 when defendant operated a motor vehicle (see, People v. Dugan, 188 A.D.2d 927, 929, lv denied 81 N.Y.2d 839; People v. Abney, 176 A.D.2d 1193, lv denied 79 N.Y.2d 823). Accordingly, we modify defendant's sentence by vacating the fine imposed for aggravated unlicensed operation of a motor vehicle in the first degree (see, People v. Abney, supra).
Penal Law former § 80.15 provided that "[w]here a person is convicted of two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted * * * a material element of the other, and the court imposes a sentence of imprisonment or a fine or both for one of the offenses, a fine shall not be imposed for the other".
Mercure, Casey, Weiss and Yesawich Jr., JJ., concur. Ordered that the judgment is modified, on the law, by reversing so much thereof as imposed a fine for aggravated unlicensed operation of a motor vehicle in the first degree, and, as so modified, affirmed.