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People v. Faulcon

Supreme Court of New York, Third Department

September 19, 2013

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
JEROME FAULCON, Appellant.

Calendar Date: July 29, 2013

Cliff Gordon, Monticello, appellant pro se.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: Peters, P.J., Stein, McCarthy and Egan Jr., JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered September 7, 2011, convicting defendant upon his plea of guilty of the crime of aggravated unlicensed operation of a motor vehicle in the first degree (two counts).

Defendant pleaded guilty to an indictment charging him with two counts of aggravated unlicensed operation of a motor vehicle in the first degree. County Court agreed, in return, to sentence him to an aggregate jail term of one year with no fines. While County Court sentenced defendant to the contemplated jail term, it further imposed a fine of $1, 000 on each count. Defendant now appeals.

County Court promised defendant that his sentence would not include a fine, but such sentence would have been illegal (see Vehicle and Traffic Law § 511 [3] [b]; People v Ryan, 83 A.D.3d 1128, 1130 [2011]). The legal sentence that County Court imposed was inconsistent with that promise. Although defendant failed to preserve this issue by moving to withdraw the plea or vacate the judgment of conviction, the sentence must nevertheless "be vacated, and the matter remitted... to afford... defendant the opportunity to accept the sentence that was actually imposed, or permit him to withdraw his plea of guilty" (People v Figueroa, 82 A.D.3d 1006, 1007 [2011], lv denied 17 N.Y.3d 795 [2011]; see People v Ryan, 83 A.D.3d at 1130; see also People v Galietta, 75 A.D.3d 753, 754-755 [2010]).

Peters, P.J., Stein, McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of Ulster County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.


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