PEOPLE v. MINER (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (George, J.), rendered July 24, 1997, convicting him of aggravated unlicensed operation of a motor vehicle in the first degree and aggravated unlicensed operation of a motor vehicle in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by reversing the defendant's conviction for aggravated unlicensed operation of a motor vehicle in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

The defendant was indicted on charges of driving while intoxicated (Vehicle and Traffic Law § 1192[3] ), driving while ability impaired (Vehicle and Traffic Law § 1192[1] ), aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511[3][a] ), and aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511[2][a][iv] ).   The jury found the defendant not guilty of the first two charges.

Pursuant to Vehicle and Traffic Law § 511(3)(a), a person is guilty of the crime of aggravated unlicensed operation of a motor vehicle in the first degree when he or she commits the crime of aggravated unlicensed operation of a motor vehicle in the second degree as provided in Vehicle and Traffic Law § 511(a)(ii), (iii) or (iv) and is operating a motor vehicle while under the influence of alcohol or a drug in violation of Vehicle and Traffic Law § 1192(1), (2), (3), (4), or (5).

Here, in light of the defendant's acquittal on the charges under Vehicle and Traffic Law § 1192(1) and (3), an essential element for conviction of aggravated unlicensed operation of a motor vehicle in the first degree is missing and therefore the verdict is repugnant (see, People v. Tucker, 55 N.Y.2d 1, 447 N.Y.S.2d 132, 431 N.E.2d 617).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.