Opinion
KA 01-00131
October 2, 2003.
Appeal from a judgment of Erie County Court (Drury, J.), entered January 3, 2001, convicting defendant upon his plea of guilty of, inter alia, driving while intoxicated as a felony.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JESSAMINE I. JACKSON OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (STEVEN MEYER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence imposed on the count of driving while intoxicated as a class D felony and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing in accordance with the same Memorandum as in People v. Smith ([appeal No. 1] 309 A.D.2d 1282 [Oct. 2, 2003]).