People v. Barrett

5 A.D.3d 1023, 773 N.Y.S.2d 720

Opinion

Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered September 9, 2002. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated as a felony, aggravated unlicensed operation of a motor vehicle in the first degree, and unlawful possession of marihuana.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence imposed on aggravated unlicensed operation of a motor vehicle in the first degree and as modified the judgment is affirmed, and the matter is remitted to Ontario County Court for resentencing on count two of the indictment.

Memorandum: As the People concede, the sentence imposed on defendant’s conviction of aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a]) is illegal (see § 511 [3] [b]; Penal Law § 70.00 [2] [e]; [3] [b]). We conclude, however, that the remainder of the bargained-for sentence is neither unduly harsh nor severe. We therefore modify the judgment by vacating the sentence imposed on the aggravated unlicensed operation of a motor vehicle count, and we remit the matter to County Court for resentencing on that count of the indictment. Present—Green, J.P., Pine, Scudder, Kehoe and Gorski, JJ.