PEOPLE v. LEWIS (2018)

Appeal by defendant, as limited by the brief, from so much of a sentence of the Criminal Court of the City of New York, Kings County (John T. Hecht, J.), imposed August 12, 2015, upon his conviction, upon his plea of guilty, of common-law driving while intoxicated, as imposed a $500 fine.

ORDERED that the sentence, insofar as appealed from, is reversed, on the law, so much of the sentence as imposed a $500 fine on the conviction of common-law driving while intoxicated is vacated, and the matter is remitted to the Criminal Court, Kings County, for further proceedings in accordance herewith.

Defendant pleaded guilty to common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3] ) and attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1] ). At the plea proceeding, the Criminal Court stated, among other things, that a “fine and surcharge are mandatory.” Defendant's counsel responded, “I don't think the fine is mandatory, fine or jail time.” The court then imposed a sentence that included, with respect to the conviction of common-law driving while intoxicated, a term of incarceration and a $500 fine.

We find that the Criminal Court improperly determined that a fine was mandatory (see Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [b] [I] ). Accordingly, the sentence, insofar as appealed from, is reversed, so much of the sentence as imposed a $500 fine on the conviction of common-law driving while intoxicated is vacated, and the matter is remitted to the Criminal Court, Kings County, to exercise its discretion as to whether a fine should be imposed (see People v. York, 123 AD3d 1155 [2014]; People v. Olmstead, 111 AD3d 1063, 1064 [2013]; People v. Thomas, 245 AD2d 1136, 1137 [1997]).

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