PEOPLE v. SMALLEY (2000)

Appeal from a judgment of the County Court of Sullivan County (La Buda, J.), rendered September 1, 1998, which revoked defendant's probation and imposed a sentence of imprisonment.

 In August 1993, defendant was sentenced to, inter alia, five years' probation upon his plea of guilty to the crimes of driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree.   Thereafter, in August 1997, a violation of probation petition was filed charging defendant with violating certain terms of his probation by failing to report his February 1996 arrest on new charges in Pennsylvania and applying for a driver's license in Pennsylvania without prior approval.   Defendant ultimately pleaded guilty to the petition and County Court revoked his probation and resentenced him to a prison term of 1 to 4 years.   Defendant now appeals, arguing that the sentence imposed was illegal and should be modified to a term of 1 to 3 years.   We disagree.   Notably, defendant's underlying conviction of driving while intoxicated was a class E felony (see, Vehicle and Traffic Law § 1193[1][c] ).  Because the minimum term of the imposed sentence of 1 to 4 years was “not less than one year nor more than one-third of the maximum term imposed” (Penal Law § 70.00[3][b] ), the sentence was not illegal as maintained by defendant (see, People v. Thomas, 209 A.D.2d 1047, 619 N.Y.S.2d 1007).   Furthermore, to the extent that defendant's arguments can be construed as a challenge to the severity of his sentence, the sentence was neither harsh nor excessive and we find no reason to disturb it in the interest of justice (see, People v. Empey, 242 A.D.2d 839, 840, 662 N.Y.S.2d 152, lv. denied 91 N.Y.2d 834, 667 N.Y.S.2d 687, 690 N.E.2d 496).

ORDERED that the judgment is affirmed.

MEMORANDUM DECISION.