Opinion
200 KA 22-00042
06-30-2023
The PEOPLE of the State of New York, Respondent, v. David L. VANDERHOEF, Defendant-Appellant. (Appeal No. 1.)
CAITLIN M. CONNELLY, BUFFALO, FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
CAITLIN M. CONNELLY, BUFFALO, FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, MONTOUR, OGDEN, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of driving while ability impaired by drugs as a misdemeanor ( Vehicle and Traffic Law §§ 1192 [4] ; 1193 [1] [b] [i]) and aggravated unlicensed operation of a motor vehicle in the third degree ( § 511 [1] [a]). In appeal No. 2, defendant appeals from a judgment convicting him upon his plea of guilty of falsifying business records in the first degree ( Penal Law § 175.10 ). In appeal No. 3, defendant appeals from a judgment convicting him upon his plea of guilty of driving while ability impaired by drugs as a class E felony ( Vehicle and Traffic Law §§ 1192 [4] ; 1193 [1] [c] [i] [A]) and aggravated unlicensed operation of a motor vehicle in the third degree ( § 511 [1] [a]).
In appeal No. 2, defendant contends that his agreed-upon sentence of an indeterminate term of imprisonment of two to four years is unduly harsh and severe. The fact that defendant "received the bargained-for sentence ... does not preclude him from seeking our discretionary review of his sentence pursuant to CPL 470.15 (6) (b)" ( People v. Hettig , 210 A.D.3d 1508, 1509, 176 N.Y.S.3d 829 [4th Dept. 2022], lv denied 39 N.Y.3d 1073, 183 N.Y.S.3d 801, 204 N.E.3d 437 [2023] [internal quotation marks omitted]). Nevertheless, we conclude that the sentence is not unduly harsh or severe.
We likewise reject defendant's contention in appeal Nos. 1 and 3, respectively, that the imposition of a $500 fine upon his conviction of misdemeanor driving while ability impaired by drugs and a $1,000 fine upon his conviction of felony driving while ability impaired by drugs is unduly harsh and severe (see People v. Hawkins , 179 A.D.3d 1547, 1549, 119 N.Y.S.3d 350 [4th Dept. 2020], lv denied 35 N.Y.3d 942, 124 N.Y.S.3d 299, 147 N.E.3d 569 [2020] ; People v. Schena , 59 A.D.3d 986, 986-987, 872 N.Y.S.2d 316 [4th Dept. 2009] ).
With respect to appeal No. 3, defendant further contends that County Court improperly enhanced his sentence upon his conviction of felony driving while ability impaired by drugs by imposing the $1,000 fine. Although defendant failed to preserve his contention for our review because he did not object to the imposition of the fine or move to withdraw his plea or to vacate the judgment of conviction (see People v. Wilson , 201 A.D.3d 1354, 1354, 158 N.Y.S.3d 681 [4th Dept. 2022] ; People v. Fortner , 23 A.D.3d 1058, 1058, 803 N.Y.S.2d 470 [4th Dept. 2005] ), we exercise our power to review the issue as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ). As the People correctly concede, the court improperly enhanced defendant's sentence "by imposing a fine that was not part of the negotiated plea agreement" ( Wilson , 201 A.D.3d at 1354, 158 N.Y.S.3d 681 [internal quotation marks omitted]). We therefore modify the judgment in appeal No. 3 by vacating the $1,000 fine "so as to conform the sentence imposed to the promise made to the defendant in exchange for his plea of guilty" ( id. [internal quotation marks omitted]; see People v. Lester , 49 A.D.3d 1183, 1183, 852 N.Y.S.2d 916 [4th Dept. 2008] ; see also People v. Days , 150 A.D.3d 1622, 1625, 55 N.Y.S.3d 544 [4th Dept. 2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ).
We have reviewed defendant's remaining contention in appeal No. 1 and conclude that it does not warrant modification or reversal of the judgment in that appeal.