PEOPLE v. COTE (1999)

Appeal from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered May 18, 1998, convicting defendant upon his plea of guilty of the crime of driving while intoxicated.

Pursuant to a negotiated plea bargain, defendant pleaded guilty to a single count of driving while intoxicated as a class D felony (see, Vehicle and Traffic Law § 1193[1][c][ii] ).   During the course of the plea allocution, County Court made a specific commitment to sentence defendant to a term of imprisonment of 1 to 3 years.   Neither County Court nor the prosecutor mentioned that a fine would be imposed in addition to the term of imprisonment.   Subsequently, at sentencing, County Court imposed the promised term of imprisonment and, without discussion as to the reason, imposed a $2,000 fine.   Defense counsel made no objection to the fine, noting only that defendant did not have the means to pay it, prompting County Court to reduce it to a judgment.   Defendant now appeals, challenging only the fine.

 Initially, we reject the People's argument that defendant's failure to remind County Court that a fine, which is optional at the discretion of the court (see, Vehicle and Traffic Law § 1193[1][c][ii] ), had not been included in the plea bargain effected a waiver of that issue (see, People v. Youngs, 156 A.D.2d 885, 886, 550 N.Y.S.2d 106).   Turning to the merits, we conclude that, although we find no fault with the plea allocution, County Court erred in not sentencing defendant as agreed by imposing the fine;  therefore, the fine must be vacated (see, id.;   see also, People v. Fisher, 233 A.D.2d 625, 649 N.Y.S.2d 826;  People v. Barto, 161 A.D.2d 1044, 558 N.Y.S.2d 856).

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the imposition of the $2,000 fine, and, as so modified, affirmed.

MEMORANDUM DECISION.