Opinion
February 3, 1995
Appeal from the Oswego County Court, Brandt, J.
Present — Denman, P.J., Lawton, Fallon, Balio and Boehm, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Oswego County Court for resentencing in accordance with the following Memorandum:
Defendant pleaded guilty to one count of felony driving while intoxicated (Vehicle and Traffic Law § 1192) and thus was subject to punishment of a fine, a period of imprisonment, or both (see, Vehicle and Traffic Law § 1193 [c]). County Court's statement that there was a mandatory minimum fine was based upon a misapprehension that the court did not have discretion in sentencing. The sentence therefore is vacated and the matter is remitted to Oswego County Court for resentencing (see, People v. Cronin, 60 N.Y.2d 430, 433; People v. Woodard, 201 A.D.2d 896; People v. Horn, 161 A.D.2d 492; People v. Taylor, 27 A.D.2d 692). The failure of the court to apprehend the extent of its discretion is a departure from the "`essential nature' of the right to be sentenced as provided by law" (People v. Fuller, 57 N.Y.2d 152, 156; see, People v. Woodard, supra).