BILLS, RANDA, PEOPLE v ( 2013 )


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  •            SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1423
    KA 11-01777
    PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    RANDA BILLS, DEFENDANT-APPELLANT.
    CARR SAGLIMBEN LLP, OLEAN (JAY D. CARR OF COUNSEL), FOR
    DEFENDANT-APPELLANT.
    LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
    OF COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Cattaraugus County Court (Larry M.
    Himelein, J.), rendered May 2, 2011. The judgment convicted
    defendant, upon his plea of guilty, of driving while intoxicated, a
    class E felony (two counts).
    It is hereby ORDERED that the judgment so appealed from is
    unanimously modified on the law by vacating the sentence imposed and
    as modified the judgment is affirmed, and the matter is remitted to
    Cattaraugus County Court for resentencing.
    Memorandum: Defendant appeals from a judgment convicting her,
    upon her plea of guilty, of two counts of driving while intoxicated as
    a felony (Vehicle and Traffic Law §§ 1192 [2]; 1193 [1] [c]).
    Although defendant validly waived her right to appeal, we agree with
    defendant that her sentence must be vacated because the record
    establishes that County Court misapprehended its discretion in
    imposing a $1,000 fine on each count (see People v Figueroa, 17 AD3d
    1130, 1131, lv denied 5 NY3d 788; People v John, 288 AD2d 848, 850, lv
    denied 97 NY2d 705). The court’s statement, “I will have to fine
    you,” reflects “the court’s misapprehension that it had no ability to
    exercise its discretion in determining whether to impose a fine”
    (People v Kropp, 49 AD3d 1339, 1340 [internal quotation marks
    omitted]; see Figueroa, 17 AD3d at 1131; People v Fehr, 303 AD2d 1039,
    1040, lv denied 100 NY2d 538). We therefore modify the judgment by
    vacating the sentence, and we remit the matter to County Court for
    resentencing. In light of our determination, we do not address
    defendant’s remaining contention.
    Entered:    February 1, 2013                       Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 11-01777

Filed Date: 2/1/2013

Precedential Status: Precedential

Modified Date: 10/8/2016