Opinion
KA 01-00833
March 21, 2003.
Appeal from a judgment of Supreme Court, Erie County (Tills, J.), entered August 13, 1999, convicting defendant upon his plea of guilty of driving while intoxicated as a felony.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO Of Counsel), For Defendant-appellant.
FRANK J. CLARK, District Attorney, BUFFALO (JOSEPH KILBRIDGE Of Counsel), For Plaintiff-respondent.
PRESENT: PINE, J.P., SCUDDER, KEHOE, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for resentencing.
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of driving while intoxicated as a D felony (Vehicle and Traffic Law § 1192; § 1193 [1] [c] [ii]) and sentencing him to an indeterminate term of imprisonment of 2a to 7 years and a $2,000 fine. At the outset, we note that the record does not establish that defendant's waiver of the right to appeal was knowing, voluntary and intelligent (see People v. Brown, 296 A.D.2d 860, lv denied 98 N.Y.2d 767; People v. Kemp, 255 A.D.2d 397). We additionally note that, even if it were valid, the waiver of the right to appeal would not preclude defendant's challenge to the severity of the sentence because there is no indication that defendant was advised of the sentencing options or maximum term of imprisonment that Supreme Court could impose in its discretion (cf. People v. Lococo, 92 N.Y.2d 825, 827; People v. Hidalgo, 91 N.Y.2d 733, 737). Nor would such waiver of appeal preclude defendant's challenge to the imposition of the fine because "a defendant may not waive the right to challenge the legality of a sentence" (People v. Seaberg, 74 N.Y.2d 1, 9; see People v. Callahan, 80 N.Y.2d 273, 280; People v. Hager, 213 A.D.2d 1008; People v. Moore, 212 A.D.2d 1062). Contrary to his contention, defendant had no right to receive a commitment by the court to the imposition of a particular sentence before entering his plea of guilty (see generally CPL 220.50). Further, the court did not abuse its discretion in imposing the maximum term of imprisonment (see People v. Palmateer, 290 A.D.2d 728; People v. Moore, 289 A.D.2d 1037, lv denied 97 N.Y.2d 731; cf. People v. Lancaster, 272 A.D.2d 719, 720). "We are constrained, however, to vacate the sentence * * *. The court described the fine as the `minimum mandatory,' thereby indicating `the court's misapprehension that it had no ability to exercise its discretion' in determining whether to impose a fine" (People v. John, 288 A.D.2d 848, 850, lv denied 97 N.Y.2d 705; see People v. Domin, 284 A.D.2d 731, 733, lv denied 96 N.Y.2d 918, reconsideration granted and order amended on other grounds 291 A.D.2d 580; People v. Swan, 277 A.D.2d 1033, 1034, lv denied 96 N.Y.2d 788; People v. Thomas, 245 A.D.2d 1136, 1137; Moore, 212 A.D.2d 1062). "We therefore modify the judgment by vacating the sentence * * * and we remit the matter to [Supreme Court, Erie County,] for resentencing" (John, 288 A.D.2d at 850; see Swan, 277 A.D.2d at 1034).