PEOPLE v. SMITH

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

The PEOPLE of the State of New York, Respondent, v. Gary M. SMITH, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  CENTRA, J.P., FAHEY, PERADOTTO, GREEN, AND GORSKI, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert B. Hallborg, Jr., of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of driving while intoxicated as a class D felony (Vehicle and Traffic Law § 1192[3];  § 1193[1][c] [former (ii) ] ), aggravated unlicensed operation of a motor vehicle in the first degree (§ 511[3][a][i] ), and failure to stay within a traffic lane (§ 1128 [a] ). As defendant correctly concedes, he failed to preserve for our review his contention that the evidence is legally insufficient to support his conviction of the count of driving while intoxicated (see CPL 470.05 [2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Nevertheless, we exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ), and we conclude that the evidence is legally insufficient to support the conviction of that count (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   In order to be convicted of driving while intoxicated as a class D felony, a person must have been twice convicted of an offense specified in Vehicle and Traffic Law § 1193(1)(c) (former [ii] ) within the past 10 years (see id.).   Here, although defendant admitted to the two prior convictions listed on the special information for driving while intoxicated, the first conviction arose from an offense committed on February 20, 1996, while the present offense was committed on February 23, 2006.   Thus, by a period of three days, the first of the two prior convictions falls outside the 10-year period specified in section 1193(1)(c) (former [ii] ).   We therefore modify the judgment by reducing the conviction of driving while intoxicated as a class D felony to a class E felony (see § 1193[1][c] [former (i) ] ), and we remit the matter to County Court for sentencing on driving while intoxicated as a class E felony.   In light of our determination, we do not address defendant's challenge to the severity of the term of imprisonment and the fine imposed for the count of driving while intoxicated as a class D felony.

 Defendant further contends that the $275 mandatory surcharge imposed by County Court pursuant to Vehicle and Traffic Law § 1809 is illegal and thus that there was no need for defendant to preserve that contention for our review.   Mandatory surcharges are not part of a defendant's sentence (see generally People v. Nieves, 2 N.Y.3d 310, 314-318, 778 N.Y.S.2d 751, 811 N.E.2d 13), however, and we thus conclude that errors involving surcharges “are not reviewable under the illegal sentence exception to the preservation requirement” (id. at 317, 778 N.Y.S.2d 751, 811 N.E.2d 13;  see generally People v. Samms, 95 N.Y.2d 52, 56, 710 N.Y.S.2d 310, 731 N.E.2d 1118).   Nevertheless, we exercise our power to review defendant's contention as a matter of discretion in the interest of justice, and we note that the authorized mandatory surcharge is $250 rather than $275 (see § 1809[1][b] [former (i) ] ).   We therefore further modify the judgment by reducing the mandatory surcharge accordingly (see People v. Figueroa, 17 A.D.3d 1130, 794 N.Y.S.2d 262, lv. denied 5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669).

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by reducing the conviction of driving while intoxicated as a class D felony (Vehicle and Traffic Law § 1192[3];  § 1193[1][c] [former (ii) ] ) to driving while intoxicated as a class E felony (§ 1192[3];  § 1193[1][c] [former (i) ] ) and vacating the sentence imposed on the first count of the indictment and by reducing the mandatory surcharge to $250 and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for sentencing on driving while intoxicated as a class E felony.

MEMORANDUM: