PEOPLE v. PEREZ (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Caryn R. Fink, J.), rendered September 29, 2023, convicting him of driving while intoxicated as a felony, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is modified, on the law, by reducing the conviction of driving while intoxicated as a felony to driving while intoxicated as a misdemeanor and vacating the sentence imposed thereon;  as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for sentencing on the conviction of driving while intoxicated as a misdemeanor.

On October 31, 2022, the defendant pleaded guilty to driving while intoxicated as a felony based upon a prior conviction for driving while intoxicated in Suffolk County (hereinafter the Suffolk County conviction).  Thereafter, the Appellate Term, Second Department, reversed the Suffolk County conviction and dismissed the accusatory instrument (see People v. Luna, 83 Misc.3d 62, 211 N.Y.S.3d 734 [App. Term, 2d Dept, 9th & 10th Jud. Dists.]).

As the defendant contends and the People correctly concede, the defendant's instant felony conviction for driving while intoxicated must be reduced to a misdemeanor conviction because the predicate Suffolk County conviction was reversed (see People v. Frieary, 144 A.D.2d 382, 382, 533 N.Y.S.2d 935).  Since an essential element of the aggravated charge no longer exists, the defendant must be deemed to have pleaded guilty to driving while intoxicated as a misdemeanor, and we remit the matter to the Supreme Court, Nassau County, for sentencing on the conviction of driving while intoxicated as a misdemeanor (see id.).

The defendant's remaining contention is without merit.

CONNOLLY, J.P., WOOTEN, TAYLOR and LANDICINO, JJ., concur.