SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
December 31, 2008
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DEAN S. TUSZYNSKI, DEFENDANT-APPELLANT. (APPEAL NO. 1.)
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered February 21, 2006. The judgment convicted defendant, upon his plea of guilty, of felony driving while intoxicated.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., MARTOCHE, LUNN, PERADOTTO, AND GREEN, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Onondaga County Court for further proceedings in accordance with the following Memorandum: In each appeal, defendant appeals from a judgment convicting him, upon his plea of guilty, of felony driving while intoxicated (Vehicle and Traffic Law § 1192 ; § 1193  [c] [former (i)]). We agree with defendant that the sentences of two consecutive terms of imprisonment of 1 to 4 years are illegal on the ground that his operation of a motor vehicle while intoxicated consisted of a single, continuous act. Penal Law § 70.25 (2) requires that sentences imposed for two or more offenses must run concurrently when the offenses are "committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other." Here, the People failed to establish the legality of consecutive sentences by showing that defendant's operation of a motor vehicle while intoxicated with respect to each judgment constituted two "separate and distinct acts" (People v Laureano, 87 NY2d 640, 643). We therefore modify the judgment in each appeal by vacating the sentence. Inasmuch as defendant's sentence in each appeal was imposed pursuant to a plea agreement, we remit each matter to County Court to resentence defendant or to "entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety" (People v Irwin, 166 AD2d 924, 925, citing People v Farrar, 52 NY2d 302, 307-308; see People v Backus, ___ AD3d ___ [Nov. 14, 2008]).
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