People v. Edenholm

9 A.D.3d 892, 779 N.Y.S.2d 688, 2004 N.Y. App. Div. LEXIS 9495

Opinion

Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered August 6, 2003. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated as a felony and aggravated unlicensed operation of a motor vehicle in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by reducing the sentence imposed on aggravated unlicensed operation of a motor vehicle in the third degree to a term of imprisonment of 30 days and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of driving while intoxicated (DWI) as a class D felony (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [ii]) and aggravated unlicensed operation of a motor vehicle in the third degree (§ 511 [1] [a]). The sentence imposed on the DWI conviction, i.e., 2 to 6 years, is not unduly harsh or severe, particularly in view of defendant’s four prior DWI convictions. However, the concurrent sentence of 90 days on the remaining conviction is not authorized by law. Aggravated unlicensed operation of a motor vehicle in the third degree is an unclassified misdemeanor for which the sentence must be a fine of not less than $200 nor more than $500, “a term of imprisonment of not more than thirty days,” or both (§ 511 [1] [b]). We therefore modify the judgment by reducing the sentence imposed on the conviction of aggravated unlicensed operation of a motor vehicle in the third degree to a term of imprisonment of 30 days. Present—Pine, J.P., Wisner, Scudder, Gorski and Lawton, JJ.