PEOPLE v. FIGUEROA (2005)

 Defendant appeals from a judgment convicting him upon his plea of guilty of aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511[3][a][i] );  driving while intoxicated as a misdemeanor (§ 1192[3];  § 1193[1][b] ) and reckless driving (§ 1212).   We reject the contention of defendant that his waiver of the right to appeal was not voluntary, knowing and intelligent (see generally People v. Allen, 82 N.Y.2d 761, 763, 603 N.Y.S.2d 820, 623 N.E.2d 1170).   That waiver encompasses defendant's contention that the incarceration portion of the sentence is unduly harsh or severe (see People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416).   Defendant's contention that County Court erred in calculating the mandatory surcharge, however, survives the waiver of the right to appeal (see People v. Nicholson, 15 A.D.3d 237, 789 N.Y.S.2d 153;  People v. Allen, 236 A.D.2d 653, 654, 654 N.Y.S.2d 194).   Although that contention is not preserved for our review, we exercise our power to review it as a matter of discretion in the interest of justice (see People v. McQueen, 11 A.D.3d 1005, 1006-1007, 782 N.Y.S.2d 336, lv. denied 4 N.Y.3d 765, 792 N.Y.S.2d 9, 825 N.E.2d 141), and we modify the judgment by reducing the mandatory surcharge pursuant to the applicable provisions of Vehicle and Traffic Law former § 1809 to $160.   We further modify the judgment by vacating the sentences imposed on misdemeanor driving while intoxicated and reckless driving, and we remit the matter to County Court for resentencing on counts two and three of the superior court information.   The court imposed what it described as the “mandatory minimum fines” on those counts.   That description “reflects the court's misapprehension that it had no ability to exercise its discretion concerning such fines” (People v. Domin, 284 A.D.2d 731, 733, 726 N.Y.S.2d 503, lv. denied 96 N.Y.2d 918, 732 N.Y.S.2d 634, 758 N.E.2d 660;  see People v. Fehr, 303 A.D.2d 1039, 1040, 757 N.Y.S.2d 205, lv. denied 100 N.Y.2d 538, 763 N.Y.S.2d 3, 793 N.E.2d 417;  People v. John, 288 A.D.2d 848, 850, 732 N.Y.S.2d 505, lv. denied 97 N.Y.2d 705, 739 N.Y.S.2d 106, 765 N.E.2d 309).   Because “defendant may not waive the right to challenge the legality of a sentence” (People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022), his waiver of the right to appeal does not preclude his challenge to the imposition of those fines (see Fehr, 303 A.D.2d at 1040, 757 N.Y.S.2d 205).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice and on the law by reducing the mandatory surcharge to $160 and by vacating the sentences imposed on driving while intoxicated and reckless driving and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing on counts two and three of the superior court information.

MEMORANDUM: