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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Dean S. TUSZYNSKI, Defendant-Appellant.  (Appeal No. 1.)

Decided: December 31, 2008

PRESENT:  SCUDDER, P.J., MARTOCHE, LUNN, PERADOTTO, AND GREEN, JJ. Frank H. HiscockLegal Aid Society, Syracuse (Robert P. Rickert of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Robert E. Rust, Jr., of Counsel), for Respondent.

In each appeal, defendant appeals from a judgment convicting him, upon his plea of guilty, of felony driving while intoxicated (Vehicle and Traffic Law § 1192[3];  § 1193[1][c] [former (i) ] ).   We agree with defendant that the sentences of two consecutive terms of imprisonment of 1 1/313 to 4 years are illegal on the ground that his operation of a motor vehicle while intoxicated consisted of a single, continuous act.  Penal Law § 70.25 (2) requires that sentences imposed for two or more offenses must run concurrently when the offenses are “committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.”   Here, the People failed to establish the legality of consecutive sentences by showing that defendant's operation of a motor vehicle while intoxicated with respect to each judgment constituted two “separate and distinct acts” (People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212).   We therefore modify the judgment in each appeal by vacating the sentence.   Inasmuch as defendant's sentence in each appeal was imposed pursuant to a plea agreement, we remit each matter to County Court to resentence defendant or to “entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety” (People v. Irwin, 166 A.D.2d 924, 925, 561 N.Y.S.2d 676, citing People v. Farrar, 52 N.Y.2d 302, 307-308, 437 N.Y.S.2d 961, 419 N.E.2d 864;  see People v. Backus, 56 A.D.3d 1119, 867 N.Y.S.2d 290).

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Onondaga County Court for further proceedings.