VIVENZIO, LANCE E., PEOPLE v ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1334
KA 13-02120
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, WHALEN, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
LANCE E. VIVENZIO, DEFENDANT-APPELLANT.
ADAM H. VAN BUSKIRK, MORAVIA, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered October 1, 2013. The judgment convicted
defendant, upon his plea of guilty, of vehicular assault in the second
degree, driving while intoxicated, and aggravated unlicensed operation
of a motor vehicle in the first 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 vehicular assault in the second degree
(Penal Law § 120.03 [1]), driving while intoxicated (Vehicle and
Traffic Law § 1192 [2]), and aggravated unlicensed operation of a
motor vehicle in the first degree (§ 511 [3]).
Defendant contends that County Court erred in imposing as a
condition of his probation the installation of an ignition interlock
device (IID) on the vehicle he was driving because that vehicle is
owned by his wife and was rendered unusable at the time the above
offenses occurred. We reject that contention. Vehicle and Traffic
Law § 1193 (1) (c) (iii) explicitly requires that the court “shall
order [a] person [convicted pursuant to section 1192 (2)] to install
and maintain . . . an [IID] in any motor vehicle owned or operated by
such person” (emphasis added). Here, the evidence in the record does
not support defendant’s assertion that the subject vehicle was
rendered unusable, and defense counsel’s unsworn statement at
sentencing in support of the assertion does not remedy that
evidentiary deficiency. Inasmuch as defendant operated the vehicle at
the time of the offenses, and in light of the fact that there is no
evidence in the record that the vehicle has been rendered unusable, we
see no reason to disturb the court’s imposition of the IID requirement
with respect to the vehicle as a condition of defendant’s probation
(see § 1193 [1] [c] [iii]; Penal Law § 65.10 [2] [k-1]).
-2- 1334
KA 13-02120
As the People concede, the certificate of conviction incorrectly
recites that defendant was convicted of a class D felony, rather than
a class E felony, under the second count of the superior court
information (see Vehicle and Traffic Law § 1193 [1] [c] [i]). The
certificate of conviction therefore must be amended to reflect that
fact (see People v Young, 74 AD3d 1864, 1865, lv denied 15 NY3d 811).
Entered: January 2, 2015 Frances E. Cafarell
Clerk of the Court