TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R.
DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
D. NEAL, DEFENDANT-APPELLANT PRO SE.
DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND
from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered January 10, 2013. The judgment
convicted defendant, upon his plea of guilty, of driving
while intoxicated, a class D felony.
hereby ORDERED that the judgment so appealed from is modified
on the law and as a matter of discretion in the interest of
justice by vacating the fine, and as modified the judgment is
On appeal from a judgment convicting him upon his plea of
guilty of driving while intoxicated as a class D felony
(Vehicle and Traffic Law §§ 1192 ; 1193  [c]
[ii]), defendant contends in his main brief that his plea was
not knowing, intelligent, and voluntary because County Court
failed to advise him of the amount of the fine to be imposed
before he pleaded guilty. Although that contention survives
defendant's waiver of the right to appeal, defendant
failed to move to withdraw the plea or to vacate the judgment
of conviction and thus failed to preserve his contention for
our review (see People v Watkins, 77 A.D.3d 1403,
1403, lv denied 15 N.Y.3d 956; People v
Baker, 49 A.D.3d 1293, 1293, lv denied 10
N.Y.3d 932). Contrary to defendant's further contention,
the court advised him at the time of the plea that it could
impose a fine in addition to a term of incarceration, and
thus preservation was required (see generally People v
Murray, 15 N.Y.3d 725, 726-727).
People correctly concede, however, the court erred in
imposing a $1, 500 fine. Vehicle and Traffic Law § 1193
(1) (c) (ii) provides that a person convicted of driving
while intoxicated as a class D felony "shall be punished
by a fine of not less than two thousand dollars nor more than
ten thousand dollars or by a period of imprisonment as
provided in the penal law, or by both such fine and
imprisonment." The court therefore had the authority to
impose a fine and a sentence of imprisonment, but was
required to impose a minimum fine of $2, 000 if it chose to
impose any fine. We cannot allow the $1, 500 illegal fine to
stand (see generally People v VanValkinburgh, 90
A.D.3d 1553, 1554) and, as a matter of discretion in the
interest of justice, we conclude that no fine should be
imposed. We therefore modify the judgment by vacating the
respect to the jurisdictional challenges to the felony
complaint and his arraignment thereon in the pro se
supplemental brief, "[t]he felony complaint was
superseded by the indictment to which defendant pleaded
guilty, and he therefore may not challenge the felony
complaint" (People v Anderson, 90 A.D.3d 1475,
1477, lv denied 18 N.Y.3d 991; see People v
Mitchell, 132 A.D.3d 1413, 1416, lv denied 27
N.Y.3d 1072). Defendant's valid waiver of the right to
appeal encompasses his challenges in his pro se supplemental
brief to the court's suppression rulings (see People
v Kemp, 94 N.Y.2d 831, 833). Furthermore, the remaining
contentions in defendant's pro se supplemental brief do
not " implicate the voluntariness of the plea and thus
[they are] also encompassed by his valid waiver of the right
to appeal' " (People v Russell, 128 A.D.3d
1383, 1384, lv denied 25 N.Y.3d 1207).
concur except Nemoyer and Scudder, JJ., who dissent in part
and vote to modify in accordance with the following
memorandum: We respectfully dissent in part. Vehicle and
Traffic Law § 1193 (1) (c) (ii) provides that a person
convicted of driving while intoxicated as a class D felony
"shall be punished by a fine of not less than two
thousand dollars nor more than ten thousand dollars or by a
period of imprisonment as provided in the penal law, or by
both such fine and imprisonment."
we agree with the majority that County Court erred in
imposing a fine of $1, 500, $500 less than the minimum
prescribed by the statute, and that we cannot allow the
illegal fine to stand. We depart from the majority's
reasoning, however, with regard to the appropriate remedy for
the illegal sentence. Rather than concluding "as a
matter of discretion in the interest of justice" that no
fine should be imposed in this case, we believe that the fine
should be vacated ...