PEOPLE v. CONSIDINE II (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed and the matter is remitted to Supreme Court, Niagara County, for further proceedings in accordance with the following memorandum:  Defendant appeals from a judgment convicting him, upon his plea of guilty, of driving while intoxicated as a class E felony (Vehicle and Traffic Law §§ 1192[3];  1193[1][c][i][A] ).  Defendant was sentenced to an indeterminate term of 1 to 3 years' imprisonment, a consecutive one-year conditional discharge, and a fine of $1,000.  That sentence is illegal because the conditional discharge term must be three years under these circumstances (see Penal Law §§ 60.21, 65.05[3][a];  Vehicle and Traffic Law § 1193[1][c][iii] ).  Although the issue is not raised by either party, we cannot allow an illegal sentence to stand (see People v. Southard, 163 A.D.3d 1461, 1461, 76 N.Y.S.3d 869 [4th Dept. 2018];  People v. Sellers, 222 A.D.2d 941, 941, 635 N.Y.S.2d 773 [3d Dept. 1995] ).  We therefore vacate the sentence and remit the matter to Supreme Court to afford defendant the opportunity to either withdraw his plea or be resentenced to the legal term of conditional discharge (see Sellers, 222 A.D.2d at 941, 635 N.Y.S.2d 773;  see generally People v. Ciccarelli, 32 A.D.3d 1175, 1176, 822 N.Y.S.2d 186 [4th Dept. 2006] ).  Defendant's appellate contentions are academic in light of our determination.