People v. Washington

49 A.D.2d 914, 374 N.Y.S.2d 34, 1975 N.Y. App. Div. LEXIS 11170

Opinion

Appeal by defendant from a judgment of the County Court, Nassau County, rendered October 8, 1974, convicting him of driving while intoxicated, as a felony, upon his plea of guilty, and imposing a sentence, inter alia, of five years’ probation and a $300 fine or three months in jail. Judgment affirmed as to the conviction; judgment reversed as to the sentence, on the law, and case remanded to the County Court for resentencing. The proper sentence to be imposed upon a conviction for driving while intoxicated, as a felony, is to be found in sections 55.10, 60.01 and 70.00 of the Penal Law and not in section 1192 of the Vehicle and Traffic Law (see People v Messinger, 35 NY2d 987, affg 43 AD2d 15; People v Bouton, 40 AD2d 383). Thus, the sentence, which imposed both a fine and probation, was invalid as a matter of law. We find no merit in the argument that appellant was deprived of his right to a speedy trial; his failure to appear in court as scheduled, and his unexplained whereabouts thereafter, were the prime causes of the delay, which, in any event, did not prejudice him (see People v Taranovich, 37 NY2d 442). Rabin, Acting P. J., Martuscello, Cohalan, Margett and Munder, JJ., concur.