Opinion
674 KA 16-02370
09-30-2022
The PEOPLE of the State of New York, Respondent, v. Travis THURSTON, Defendant-Appellant.
KATHRYN M. FESTINE, UTICA, FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (EVAN A. ESSWEIN OF COUNSEL), FOR RESPONDENT.
KATHRYN M. FESTINE, UTICA, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (EVAN A. ESSWEIN OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the conditional discharge imposed on count one of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant was convicted upon his plea of guilty of aggravated vehicular homicide ( Penal Law § 125.14 [4] ) and aggravated vehicular assault (§ 120.04-a [4]). On the count of aggravated vehicular homicide, defendant was sentenced to an indeterminate term of imprisonment of 5 to 15 years with a consecutive 3-year term of conditional discharge with the requirement that defendant install an ignition interlock device on any vehicle operated by him. As defendant contends and the People correctly concede, based on the offenses for which defendant was convicted, Penal Law § 60.21 does not apply (see People v. Giacona , 130 A.D.3d 1565, 1566, 14 N.Y.S.3d 850 [4th Dept. 2015] ; People v. Flagg , 107 A.D.3d 1613, 1614, 967 N.Y.S.2d 577 [4th Dept. 2013], lv denied 22 N.Y.3d 1138, 983 N.Y.S.2d 496, 6 N.E.3d 615 [2014] ). Thus, the sentence is illegal insofar as County Court imposed the conditional discharge on the count of aggravated vehicular homicide (see People v. Campagna , 172 A.D.3d 1904, 1905, 97 N.Y.S.3d 917 [4th Dept. 2019] ; Flagg , 107 A.D.3d at 1614, 967 N.Y.S.2d 577 ). "Although this issue was not raised before the [sentencing] court ..., we cannot allow an [illegal] sentence to stand" ( Campagna , 172 A.D.3d at 1905, 97 N.Y.S.3d 917 [internal quotation marks omitted]). The proper remedy is to vacate the conditional discharge imposed on the count of aggravated vehicular homicide (see generally Giacona , 130 A.D.3d at 1566, 14 N.Y.S.3d 850 ; Flagg , 107 A.D.3d at 1614, 967 N.Y.S.2d 577 ), and we therefore modify the judgment accordingly.
Finally, we note that the certificate of conviction and uniform sentence and commitment form must be amended to correct a clerical error (see People v. Lewis , 185 A.D.3d 1542, 1543, 125 N.Y.S.3d 912 [4th Dept. 2020], lv denied 35 N.Y.3d 1114, 133 N.Y.S.3d 531, 158 N.E.3d 548 [2020] ). Both the certificate of conviction and the uniform sentence and commitment form erroneously state that defendant was convicted of aggravated vehicular assault under Penal Law § 120.04 (4), and both should therefore be amended to correctly reflect that defendant was convicted of that offense under Penal Law § 120.04-a (4).