Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered September 28, 2007. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated as a felony.
The opinion of the court was delivered by: Pine, J.
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: MARTOCHE, J.P., SMITH, CENTRA, FAHEY, AND PINE, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, count one of the indictment is dismissed without prejudice to the People to re-present any appropriate charges under that count to another grand jury, count two of the indictment is reinstated, and the matter is remitted to Ontario County Court for further proceedings on count two of the indictment.
In this appeal from a judgment convicting him following a plea of guilty of felony driving while intoxicated ([DWI] Vehicle and Traffic Law § 1192 ; § 1193  [c] [former (i)]), defendant raises, inter alia, an issue of first impression in contending that his 1999 out-of-state conviction was improperly used to elevate his DWI offense from a misdemeanor to a felony. For the reasons that follow, we agree.
Specifically, defendant contends that out-of-state convictions occurring before November 1, 2006 cannot be used as predicate offenses to elevate DWI charges from misdemeanors to felonies. Thus, he contends that the facts alleged in the indictment, as amplified by the prosecutor's special information (see CPL 200.60 ), fail to charge him with the crime of felony DWI. We note at the outset that, because defendant is challenging the facial sufficiency of the accusatory instrument, that challenge is not forfeited by his plea of guilty (see generally People v Lucas, 11 NY3d 218, 220; People v Taylor, 65 NY2d 1, 5).
In 2006 the Legislature amended Vehicle and Traffic Law § 1192 (8) to permit the use of out-of-state convictions to elevate New York DWI offenses to felonies. That statute provides:
"Effect of prior out-of-state conviction. A prior out-of-state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction of a violation of this section for purposes of determining penalties imposed under this section or for purposes of any administrative action required to be taken pursuant to [section 1193 (2)] of this article; provided, however, that such conduct, had it occurred in this state, would have constituted a misdemeanor or felony violation of any of the provisions of this section. Provided, however, that if such conduct, had it occurred in this state, would have constituted a violation of any provisions of this section which are not misdemeanor or felony offenses, then such conduct shall be deemed to be a prior conviction of a violation of [section 1192 (1)] . . . ."
The amendments to section 1192 (8) took effect on November 1, 2006 (L 2006, ch 231, § 3), and the enabling language of the Act to amend that portion of the Vehicle ...