Opinion
July 23, 1998
Appeal from the Court of Cortland County (Mathews, J.).
On December 13, 1995, defendant was convicted by a jury of aggravated unlicensed operation of a motor vehicle in the first degree, driving while ability impaired, failure to keep right and unlicensed operation of a motor vehicle, all as a result of his operation of a motor vehicle on January 1, 1994. The convictions were appealed and were upheld by this Court, with the exception of the conviction for driving while ability impaired which was reversed due to an inordinate delay in sentencing ( see, People v. Keller, 238 A.D.2d 758). Defendant now moves, pursuant to CPL 440.20, to set aside his sentence contending that the reversal of the conviction for driving while ability impaired (Vehicle and Traffic Law § 1192 Veh. Traf. [1]) requires the reduction of his conviction of aggravated unlicensed operation of a motor vehicle in the first degree. to aggravated unlicensed operation of a motor vehicle in the second degree. County Court denied defendant's motion. and we affirm.
To find defendant guilty of the crime of aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 Veh. Traf. [3] [a]), the jury was required, as pertinent to this appeal, to find that defendant was operating a motor vehicle while under the influence of alcohol in violation of Vehicle and Traffic Law § 1192 Veh. Traf. (1), (2), (3), (4) or (5). There is no question that the jury found defendant guilty of, inter alia, the infraction of driving while ability impaired in violation of Vehicle and Traffic Law § 1192 Veh. Traf. (1) since this was their verdict on count one of the indictment. The mere fact that, due to an apparent oversight, sentencing for the conviction of driving while ability impaired was not imposed does not negate the jury's finding that on the day in question defendant was operating a motor vehicle while his ability was impaired due to the consumption of alcohol. Since a conviction under Vehicle and Traffic Law § 1192 Veh. Traf. is not an element of aggravated unlicensed operation of a motor vehicle in the first degree and all of the elements necessary to convict defendant of this charge were presented to the jury, we find that their verdict should not be disturbed ( see, People v. Morgan, 219 A.D.2d 759, 760, lv denied 87 N.Y.2d 849; People v. Crandall, 199 A.D.2d 867, 868).
Cardona, P. J., Peters, Carpinello and Graffeo, JJ., concur.
Ordered that the order is affirmed.