Opinion
April 3, 1995
Appeal from the County Court, Suffolk County (Cacciabaudo, J.).
Ordered that the sentence is affirmed.
Given the defendant's repeated convictions for driving while intoxicated, we find the sentence imposed upon him was neither harsh nor excessive and does not warrant modification (see, People v Erali, 201 A.D.2d 665; People v Suitte, 90 A.D.2d 80). Further, since the defendant did not receive the maximum term of imprisonment, the imposition of an additional jail term as an alternative to payment of the fine and surcharge was not improper (see, CPL 420.10 [d]; cf., People v Saffore, 18 N.Y.2d 101; cf., People v Baker, 130 A.D.2d 582; cf., People v Neff, 110 A.D.2d 721). We note, however, that if the defendant is unable to pay the fine or surcharge, he has the right at any time to apply to the County Court to be resentenced pursuant to CPL 420.10 (5) (see, CPL 420.10). Mangano, P.J., Bracken, O'Brien, Pizzuto and Goldstein, JJ., concur.