Opinion
December 31, 1997
Present — Pine, J. P., Lawton, Hayes, Wisner and Boehm, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Genesee County Court for resentencing in accordance with the following Memorandum: Defendant pleaded guilty to felony driving while intoxicated (Vehicle and Traffic Law § 1192; § 1193 [1] [c]) and aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a]) and was sentenced to concurrent indeterminate terms of incarceration and fined $1,000 and $500, respectively. Prior to imposing the fines, County Court stated that the fines were mandatory minimums. That statement reflects the misapprehension of the court that it was required by Vehicle and Traffic Law § 1193 (1) (c) to impose a fine; in fact, the statute provides for a fine, a period of imprisonment or both. The failure of the court to apprehend the extent of its discretion violated defendant's "right to be sentenced as provided by law" (People v. Fuller, 57 N.Y.2d 152, 156). There being no plea agreement regarding the fine, the sentence must be vacated and the matter remitted to Genesee County Court for resentencing ( see, People v. Moore, 212 A.D.2d 1062). (Appeal from Judgment of Genesee County Court, Griffith, J. — Felony Driving While Intoxicated.)