PEOPLE v. REDMOND (2021)

ORDERED that the amended judgment is modified, on the law, by striking the conditional discharge requiring defendant to install and maintain an ignition interlock device on any vehicle he may own or operate for one year; as so modified, the amended judgment is affirmed.

After defendant pleaded guilty to driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]) and driving while ability impaired (Vehicle and Traffic Law § 1192 [1]) and successfully completed several conditions of the plea agreement, the court, in accordance with the terms of the plea agreement, vacated defendant's plea to the charge of driving while intoxicated so that only the charge of driving while ability impaired remained. The court imposed the promised sentence which, insofar as is relevant here, included a one-year conditional discharge requiring defendant to install and maintain an ignition interlock device (IID) on any vehicle he may own or operate for one year. On October 23, 2019, the Criminal Court resentenced defendant to 14 days’ imprisonment and a one-year conditional discharge requiring defendant to install and maintain an IID through October 22, 2020. Defendant served the 14-day term of imprisonment, but obtained a stay of the conditional discharge.

On appeal, defendant argues, among other things, that the Criminal Court lacked the authority to resentence him to a conditional discharge requiring him to install and maintain an IID, as he was only convicted of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]).

Penal Law § 65.10 (2) (k-1) provides that a court may impose a condition to install and maintain a functioning IID only where the defendant “has been convicted of a violation of subdivision two, two-a or three of section eleven hundred ninety-two of the vehicle and traffic law, or any crime defined by the vehicle and traffic law of this chapter of which an alcohol-related violation of any provision of section eleven hundred ninety-two of the vehicle and traffic law is an essential element.” Here, defendant's conviction of driving while ability impaired pursuant to Vehicle and Traffic Law § 1192 (1), a traffic infraction, falls outside the scope of Penal Law § 65.10 (2) (k-1) (see People v Levy, 91 AD3d 793 [2012]). Consequently, the imposition of a conditional discharge requiring defendant to install and maintain an IID for one year is not authorized (compare Vehicle and Traffic Law § 1193 [1] [a], with Vehicle and Traffic Law § 1193 [1] [b] [ii]) and must be stricken.

Defendant's remaining argument, raised in the alternative, has been rendered academic in light of our determination.

Accordingly, the amended judgment is modified by striking the conditional discharge requiring defendant to install and maintain an ignition interlock device on any vehicle he may own or operate for one year.

ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.