Michael A. Siragusa, Esq., Erie County Attorney, Jeremy C. Toth, Asst. County Attorney, of counsel, for the People.
[970 N.Y.S.2d 392]
Andrew C. LoTempio, Esq., for Defendant.
DECISION AND ORDER
M. WILLIAM BOLLER, J.
Defendant has moved this court to dismiss his violation of probation, which he was sentenced to pursuant to V & T Law § 1193,1198 and PL § 60.21, on the grounds that those sections are unconstitutional for vagueness; that defendant cannot be placed on probation after serving a one year definite sentence; and that punishment for violation of such probation is in violation of the Double Jeopardy Clause of the New York State Constitution. The Erie County Attorney's Office opposes this motion.
For a violation of V & T Law § 1193-1(c)(ii) a defendant will be sentenced in accordance with the applicable Penal Law statutes. The possible sentences are: probation, probation with a term of imprisonment of six months or less, a definite sentence of one year or less, or an indeterminate sentence.
V & T Law § 1193-1(c)(iii) also requires a period of probation or conditional discharge to be imposed in addition to any period of imprisonment that is imposed at the time of sentence. Such period of probation shall be for the sole purpose of requiring the defendant to install an ignition interlock device on any automobile that he may have access to for a period of at least six months. This period of probation
must run consecutively to any term of imprisonment pursuant to PL § 60.21.
Penal Law § 60.21 would appear to be in conflict with Penal Law § 60.01(2)(d) which sets forth allowable sentences for felony convictions. PL § 60.01(2)(d) does not allow a period of probation to be imposed in conjunction with the imposition of a definite, indeterminate or determinate term of imprisonment.
On November 4, 2011, defendant was sentenced for Driving While Intoxicated, in violation of V & T Law §§ 1192-3,1193-1(c)(ii), a class " D" felony, to a one year term of imprisonment, to be followed by a five year term of probation, with the specific condition that he install an ignition interlock device on any vehicle available to him. On September 12, 2012, defendant was arrested for Aggravated Unlicensed Operation of a Motor Vehicle. Specifically, he was operating the vehicle without an ignition interlock device. As a result of this arrest, the Erie County Probation Department filed a violation of probation with this court.
Defendant's first contention that the law is unconstitutionally vague is based upon his argument that a defendant can only speculate as to what punishment he might face if his probation is violated for failure to operate a vehicle that is not equipped with an ignition interlock device.
When a court is considering " a challenge to the constitutionality of a penal law on the grounds of vagueness, it is well settled that a two-pronged analysis is required. First, the statute must provide sufficient notice of what conduct is prohibited; second, the statute must not be written in such a manner as to permit or encourage arbitrary and discriminatory enforcement." People v. Bright, 71 N.Y.2d 376, 383, 526 N.Y.S.2d 66, 520 N.E.2d 1355.
V & T § 1198(2) requires any person convicted of a Driving While Intoxicated offense to install an ignition interlock device on any automobile that he may operate as a condition of his probation. Section 1198-9 of the V & T Law makes operation of an automobile without a court [970 ...