People v. Smith

People v Smith (2017 NY Slip Op 06966)

People v Smith

2017 NY Slip Op 06966

Decided on October 4, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 4, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
ROBERT J. MILLER
COLLEEN D. DUFFY
HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON, JJ.

2014-06103
(Ind. No. 13-00391)

[*1]The People of the State of New York, respondent,

v

Bernard Smith, appellant.

James D. Licata, New City, NY (Ellen O'Hara Woods of counsel), for appellant.

Thomas P. Zugibe, District Attorney, New City, NY (Itamar J. Yeger and Carrie A. Ciganek of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Rockland County (Kelly, J.), rendered April 30, 2014, convicting him of driving while intoxicated as a felony in violation of Vehicle and Traffic Law § 1192(3), upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the sentence imposed was not illegal. Where, as here, a person is convicted under Vehicle and Traffic Law § 1192(3), a sentencing court is required, pursuant to Penal Law § 60.21, to impose a period of probation or conditional discharge to run consecutively to any period of imprisonment, notwithstanding Penal Law § 60.01(2)(d) (see Vehicle and Traffic Law § 1193[1][c][iii]; People v Vanbuskirk, 126 AD3d 1239, 1240; People v O'Brien, 111 AD3d 1028, 1029; People v Panek, 104 AD3d 1201, 1201-1202; People v Oliver, 98 AD3d 751, 751). Accordingly, the defendant's sentence, which included a consecutive period of probation, was legal.

BALKIN, J.P., MILLER, DUFFY, LASALLE and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court