People v. Brainard

• Citation: 2013 N.Y. Slip Op. 07881,111 A.D.3d 1162,975 N.Y.S.2d 498
• Parties: The PEOPLE of the State of New York, Respondent, v. Randy C. BRAINARD, Appellant.
• Decision Date: 27 November 2013
• Court: New York Supreme Court Appellate Division

111 A.D.3d 1162
975 N.Y.S.2d 498
2013 N.Y. Slip Op. 07881

The PEOPLE of the State of New York, Respondent,
v.
Randy C. BRAINARD, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 27, 2013.

Glenn MacNeill, Special Prosecutor, Canton, for appellant.

Rosemary Phillips, Canton, for respondent.

Before: PETERS, P.J., McCARTHY, SPAIN and EGAN JR., JJ.

McCARTHY, J.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered May 18, 2012, convicting defendant

[975 N.Y.S.2d 499]

upon his plea of guilty of the crime of driving while intoxicated.

In satisfaction of several charges, defendant pleaded guilty to one count of driving while intoxicated, a class E felony ( seeVehicle and Traffic Law § 1192 [2] ).¹ County Court sentenced him to a one-year term of interim probation, which included a condition that defendant complete an alcohol dependence treatment program. He failed to meet that condition, resulting in a violation of his interim probation. The court then sentenced defendant to the maximum prison term for an E felony, 1 1/3 to 4 years, along with a $1,500 fine. The court also imposed a term of five years of probation with ignition interlock conditions to run consecutively to the sentence of imprisonment, pursuant to Vehicle and Traffic Law § 1193(1)(b)(ii) and Penal Law § 60.21. Defendant appealed.

While this appeal was pending, defendant was released from prison on parole supervision until the expiration of the maximum term of his sentence of incarceration in January 2016. Upon the recommendation of the St. Lawrence County Probation Department, County Court sua sponte vacated the sentence of probation and imposed a sentence of conditional discharge for three years, expiring in April 2016, with its only condition being a requirement that defendant install an ignition interlock device within 10 days of being determined eligible for relicensing by the Department of Motor Vehicles and maintain that device for a period of six months in any vehicle that he owns or operates.²

Penal Law § 60.21 does not impose an unconstitutional multiple punishment for one crime. The Double Jeopardy Clause of the U.S. Constitution provides three distinct protections: “against a second prosecution for the same offense after acquittal,” “against a second prosecution for the same offense after conviction,” and “against multiple punishments for the same offense” (North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2089, 23 L.Ed.2d 656 [1969]; see People v. Williams, 14 N.Y.3d 198, 214, 899 N.Y.S.2d 76, 925 N.E.2d 878 [2010], cert. denied ––– U.S. ––––, 131 S.Ct. 125, 178 L.Ed.2d...