People v. Smith

• Decision Date: 04 October 2017
• Citation: 60 N.Y.S.3d 844 (Mem),154 A.D.3d 714
• Parties: The PEOPLE, etc., respondent, v. Bernard SMITH, appellant.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 714

60 N.Y.S.3d 844 (Mem)

The PEOPLE, etc., respondent,

v.Bernard SMITH, appellant.

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

Oct. 4, 2017.

James D. Licata, New City, NY (Ellen O'Hara Woods of counsel), for appellant.

Thomas P. Zugibe, District Attorney, New City, NY (Itamar J. Yeger and Carrie A. Ciganek of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Rockland County (Kelly, J.), rendered April 30, 2014, convicting him of driving while intoxicated as a felony in violation of Vehicle and Traffic Law § 1192 (3), upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the sentence imposed was not illegal. Where, as here, a person is convicted under Vehicle and Traffic Law § 1192(3), a sentencing court is required, pursuant to Penal Law § 60.21, to impose a period of probation or conditional discharge to run consecutively to any period of imprisonment, notwithstanding Penal Law § 60.01(2)(d) (see Vehicle and Traffic Law § 1193[1][c][iii] ; People v. Vanbuskirk, 126 A.D.3d 1239, 1240, 3 N.Y.S.3d 648 ; People v. O'Brien, 111 A.D.3d 1028, 1029, 975 N.Y.S.2d 219 ; People v. Panek, 104 A.D.3d 1201, 1201–1202, 960 N.Y.S.2d 801 ; People v. Oliver, 98 A.D.3d 751, 751, 950 N.Y.S.2d 482 ). Accordingly, the defendant's sentence, which included a consecutive period of probation, was legal.

BALKIN, J.P., MILLER, DUFFY, LaSALLE and BRATHWAITE NELSON, JJ., concur.