PEOPLE v. KROPP (2008)

Defendant appeals from a judgment convicting him, upon his plea of guilty, of felony driving while intoxicated (Vehicle and Traffic Law § 1192[3];  § 1193[1][c] [former (ii) ] ) and aggravated unlicensed operation of a motor vehicle in the third degree (§ 511[1] ).   Contrary to defendant's contention, the bargained-for sentence of incarceration imposed by County Court is not unduly harsh or severe.  “We are constrained, however, to vacate the sentence” imposed for aggravated unlicensed operation of a motor vehicle in the third degree (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;  see People v. Figueroa, 17 A.D.3d 1130, 1131, 794 N.Y.S.2d 262, lv. denied 5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669;  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).   The comments of the court in imposing a $200 fine with respect to that offense reflect “ ‘the court's misapprehension that it had no ability to exercise its discretion’ in determining whether to impose a fine” (John, 288 A.D.2d at 850, 732 N.Y.S.2d 505).   We therefore modify the judgment accordingly, and we remit the matter to County Court for resentencing on that offense.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence imposed for aggravated unlicensed operation of a motor vehicle in the third degree and as modified the judgment is affirmed, and the matter is remitted to Genesee County Court for resentencing on that offense.

MEMORANDUM: