FARRELLY, SCOTT P., PEOPLE v ( 2012 )


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  •                SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    175
    KA 11-00329
    PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                                     MEMORANDUM AND ORDER
    SCOTT P. FARRELLY, DEFENDANT-APPELLANT.
    ADAM H. VAN BUSKIRK, AURORA, FOR DEFENDANT-APPELLANT.
    JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (DIANE M. ADSIT OF
    COUNSEL), FOR RESPONDENT.
    ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE
    OF COUNSEL), IN HIS STATUTORY CAPACITY UNDER EXECUTIVE LAW § 71.
    Appeal from a judgment of the Cayuga County Court (Mark H.
    Fandrich, A.J.), rendered February 1, 2011. The judgment convicted
    defendant, upon his plea of guilty, of driving while intoxicated, a
    class D felony and unlawful fleeing a police officer in a motor
    vehicle in the third degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: Defendant appeals from a judgment convicting him
    upon his plea of guilty of felony driving while intoxicated ([DWI]
    Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [ii]) and unlawful
    fleeing a police officer in a motor vehicle in the third degree (Penal
    Law § 270.25). We reject defendant’s contention that the restitution
    order in favor of one of the victims does not correspond with the
    conditions of restitution set at sentencing. County Court assured
    defendant at sentencing that he would not have to pay restitution
    twice in the event that the victim recovered insurance proceeds for
    the damage defendant caused to his house, and the restitution order
    does not conflict with that statement. Defendant’s further contention
    that the court erred in ordering restitution in excess of the
    statutory cap is without merit inasmuch as defendant consented to the
    amount of restitution (see § 60.27 [5] [a]).
    Defendant contends that he should not have been sentenced to a
    period of probation with an ignition interlock device requirement
    following his sentence of incarceration. He contends that only
    aggravated DWI offenders (see Vehicle and Traffic Law § 1192 [2-a])
    are subject to the mandatory supervision and ignition interlock device
    requirements set forth in, inter alia, Vehicle and Traffic Law § 1198
    for crimes committed prior to August 15, 2010 and that non-aggravated
    -2-                           175
    KA 11-00329
    DWI offenders such as himself are subject to those requirements only
    for offenses committed on or after August 15, 2010. We reject those
    contentions and conclude that defendant misreads the relevant
    statutes. Pursuant to L 2009, ch 496, § 15, the amendments to, inter
    alia, Vehicle and Traffic Law § 1198, are applicable to defendant
    inasmuch as he was sentenced after they took effect, i.e., after
    August 15, 2010. Defendant failed to preserve for our review his
    further contentions that those amendments are unconstitutional in
    several respects (see generally People v Rivera, 9 NY3d 904, 905;
    People v Davidson, 98 NY2d 738, 739-740; People v Korber, 89 AD3d
    1543), and we decline to exercise our power to review those
    contentions as a matter of discretion in the interest of justice (see
    CPL 470.15 [6] [a]).
    Entered:   February 17, 2012                   Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 11-00329

Filed Date: 2/17/2012

Precedential Status: Precedential

Modified Date: 10/8/2016