People v. Neal ( 2017 )

NeMoyer and Scudder, JJ.

(dissenting). We respectfully dissent in part. Vehicle and Traffic Law § 1193 (1) (c) (ii) provides that a person convicted of driving while intoxicated as a class D felony “shall be punished by a fine of not less than two thousand dollars nor more than ten thousand dollars or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment.”

Here, we agree with the majority that County Court erred in imposing a fine of $1,500, $500 less than the minimum prescribed by the statute, and that we cannot allow the illegal fine to stand. We depart from the majority’s reasoning, however, with regard to the appropriate remedy for the illegal sentence. Rather than concluding “as a matter of discretion in the interest of justice” that no fine should be imposed in this case, we believe that the fine should be vacated and that the matter should be remitted to Monroe County Court for resentencing (see People v Smith, 309 AD2d 1282, 1282 [2003]).

Present — Whalen, P.J., Smith, Peradotto, NeMoyer and Scud-der, JJ.