People v. Moore , 623 N.Y.S.2d 42 ( 1995 )

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Oswego County Court for resentencing in accordance with the following Memorandum: Defendant pleaded guilty to one count of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and thus was subject to punishment of a fine, a period of imprisonment, or both (see, Vehicle and Traffic Law § 1193 [1] [c]). County Court’s statement that there was a mandatory minimum fine was based upon a misapprehension that the court did not have discretion in sentencing. The sentence therefore is vacated and the matter is remitted to Oswego County Court for resentencing (see, People v Cronin, 60 NY2d 430, 433; People v Woodard, 201 AD2d 896; People v Horn, 161 AD2d 492; People v Taylor, 27 AD2d 692). The failure of the court to apprehend the extent of its discretion is a departure from the " 'essential nature’ of the right to be sentenced as provided by law” (People v Fuller, 57 NY2d 152, 156; see, People v Woodard, supra). (Appeal from Judgment of Oswego County Court, Brandt, J.—Felony Driving While Intoxicated.) Present—Denman, P. J., Lawton, Fallon, Balio and Boehm, JJ.