Opinion
1212 KA 15–01778
11-16-2018
The PEOPLE of the State of New York, Respondent, v. Rinaldo R. PEARSON, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND NEMOYER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence imposed on count two of the indictment, and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for resentencing on that count.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ) and misdemeanor driving while intoxicated (DWI) ( Vehicle and Traffic Law §§ 1192[2] ; 1193[1][b][i] ). Defendant contends, and the People concede, that Supreme Court failed to apprehend the extent of its sentencing discretion on the DWI count. We agree. Defendant's contention is not foreclosed by his waiver of the right to appeal and does not require preservation (see People v. Davis, 115 A.D.3d 1239, 1239, 982 N.Y.S.2d 272 [4th Dept. 2014] ). During the plea colloquy, the court informed defendant that the fine for the DWI was between $1,000 and $5,000, when in fact the fine was between $500 and $1,000, and it was discretionary, not mandatory, if the court imposed a period of imprisonment (see § 1193[1][b][i]; People v. Bills, 103 A.D.3d 1149, 1149–1150, 958 N.Y.S.2d 834 [4th Dept. 2013] ; People v. Swan, 277 A.D.2d 1033, 1034, 716 N.Y.S.2d 194 [4th Dept. 2000], lv denied 96 N.Y.2d 788, 725 N.Y.S.2d 652, 749 N.E.2d 221 [2001] ). Additionally, the record does not establish that the court was aware of the possible periods of probation and the duration for the condition of the ignition interlock device (see Penal Law § 65.00[3][d] ; Vehicle and Traffic Law § 1193[1][b][ii] ; cf. People v. Beyrau, 115 A.D.3d 1240, 1240, 985 N.Y.S.2d 775 [4th Dept. 2014] ). We therefore modify the judgment by vacating the sentence imposed on count two of the indictment, and we remit the matter to Supreme Court for resentencing on that count (see Bills, 103 A.D.3d at 1150, 958 N.Y.S.2d 834 ).