THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JAMES SLATTERY DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JAMES SLATTERY, DEFENDANT-APPELLANT.

KA 09-02381

Decided: February 18, 2011

PRESENT:  SCUDDER, P.J., PERADOTTO, LINDLEY, AND MARTOCHE, JJ. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES SLATTERY, DEFENDANT-APPELLANT PRO SE. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (J. MICHAEL MARION OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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 Erie County Court for resentencing.

Memorandum:  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][ii] ), aggravated unlicensed operation of a motor vehicle in the first degree (§ 511[3][a][i] ) and unauthorized use of a vehicle in the third degree (Penal Law § 165.05[1] ).   As defendant contends and the People correctly concede, County Court misapprehended its discretion in determining that the sentences for those offenses had to run consecutively to a prior undischarged term of parole.   That contention survives defendant's valid waiver of the right to appeal (see People v. Hager, 213 A.D.2d 1008).   Pursuant to Penal Law § 70.25(1), the court had the discretion to impose concurrent sentences (see People v. Woodard, 201 A.D.2d 896), and “[t]he failure of the court to apprehend the extent of its discretion deprived defendant of the right to be sentenced as provided by law” (Hager, 213 A.D.2d at 1008).   We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing.

Patricia L. Morgan

Clerk of the Court