People v. Smith

58 A.D.2d 635, 396 N.Y.S.2d 31, 1977 N.Y. App. Div. LEXIS 12705

Opinion

Appeal by defendant, as limited by his motion, from sentences of the County Court, Nassau County, imposed August 4, 1976, upon his convictions of driving while intoxicated, as a felony, and criminal possession of a forged instrument (three counts), upon his pleas of guilty, the sentences being concurrent terms of imprisonment with a minimum of 1 Vi years and a maximum of 3 years, upon a determination that he was a second-felony offender. Sentences imposed upon the convictions of criminal possession of a forged instrument affirmed.. No opinion. Sentence imposed upon the conviction of driving while intoxicated, as a felony, reversed, on the law, and action remanded to the County Court for resentencing as to the said conviction. Defendant could not be sentenced as a second-felony offender upon his conviction of driving while intoxicated, which is a crime under the Vehicle and Traffic Law and not the Penal Law (see People v Tyler, 46 AD2d 997; People v Speranza, 80 Mise 2d 798). Hargett, J. P., Damiani, Rabin and O’Connor, JJ., concur. 33 The People of the State of New York, Respondent, v Lymónd