People v. Sirabella

• Decision Date: 29 March 2017
• Docket Number: 2015-08770, Ind. No. 946/15.
• Parties: The PEOPLE, etc., respondent, v. Tara SIRABELLA, appellant.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1186

50 N.Y.S.3d 511

The PEOPLE, etc., respondent,

v.Tara SIRABELLA, appellant.

2015-08770, Ind. No. 946/15.

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

March 29, 2017.

Laurette D. Mulry, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), for respondent.

L. PRISCILLA HALL, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.), rendered July 27, 2015, convicting her of operating a motor vehicle while under the influence of drugs in violation of Vehicle and Traffic Law § 1192(4) and driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs in violation of Vehicle and Traffic Law § 1192(4–a), upon her plea of guilty, and imposing sentence which included a conditional discharge and a fine in the sum of $1,000.

ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Suffolk County, for further proceedings consistent herewith.

The defendant's contention that the mandatory surcharge imposed at sentencing should be waived is unpreserved for appellate review (see People v. Ruz, 70 N.Y.2d 942, 524 N.Y.S.2d 668, 519 N.E.2d 614 ; People v. Norelius, 140 A.D.3d 799, 30 N.Y.S.3d 908 ) and, in any event, without merit (see CPL 420.35[2] ; People v. Jones, 26 N.Y.3d 730, 27 N.Y.S.3d 431, 47 N.E.3d 710 ; People v. Owens, 10 A.D.3d 619, 781 N.Y.S.2d 454 ).

Although the defendant's contention that the County Court improperly imposed an enhanced sentence is unpreserved for appellate review, we reach the issue in the exercise of our interest of justice jurisdiction (see People v. Gregory, 140 A.D.3d 1088, 1089, 33 N.Y.S.3d 736 ; People v. Carrasquillo, 133 A.D.3d 774, 775, 19 N.Y.S.3d 333 ). The court improperly enhanced the defendant's sentence by imposing a fine in the sum of $1,000 that was not part of the negotiated plea agreement, without affording the defendant an opportunity to withdraw her plea (see People v. Gregory, 140 A.D.3d at 1089, 33 N.Y.S.3d 736 ; People v. Roberts, 139 A.D.3d 1092, 30 N.Y.S.3d 829 ; People v. Figueroa, 82 A.D.3d 1006, 1007, 918 N.Y.S.2d 731 ). However, vacatur of the provision of the sentence imposing the fine, the remedy sought on appeal by the defendant and consented to by the People, would result in an illegal sentence. Insofar as relevant here, pursuant to Vehicle and Traffic Law § 1193(1)(b)(i), a violation of Vehicle and Traffic Law § 1192(4) or (4–a) is punishable by a fine of not less than $500 nor more than $1,000, or by imprisonment for not more than one year, or by both such fine and imprisonment.

Here, since the defendant was...