People v Butler

People v Butler 2007 NY Slip Op 10194 [46 AD3d 1333] December 21, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

The People of the State of New York, Respondent, v Marlon Butler, Also Known as Marlow Butler, Appellant.

—[*1] Edward J. Nowak, Public Defender, Rochester (Janet C. Somes of counsel), for defendant-appellant.

Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), for respondent.

Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered May 10, 2004. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated as a felony.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the amount of the fine and as modified the judgment is affirmed, and the matter is remitted to Monroe County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of driving while intoxicated as a felony (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [i]). As part of the plea agreement, County Court stated it would impose a term of incarceration of no more than one year. Defendant failed to appear for the scheduled sentencing and was apprehended approximately seven years later. Contrary to defendant's contention, the court did not abuse its discretion in imposing an enhanced term of incarceration, along with a fine of $1,000 pursuant to Vehicle and Traffic Law § 1193 (1) (c) (i). The court advised defendant at the time of the plea colloquy that it would not be bound by the agreed-upon sentence in the event that defendant failed to comply with certain conditions, including appearing for sentencing. Defendant violated the terms of the plea agreement by failing to appear for sentencing, and the court therefore "was no longer bound by the plea promise and could properly impose an enhanced sentence" (People v Figgins, 87 NY2d 840, 841 [1995]).

We agree with defendant, however, that it is not clear on the record before us whether the court fixed the amount of the fine or improperly delegated that function (see generally People v Fuller, 57 NY2d 152, 156-158 [1982]). We therefore modify the judgment by vacating the amount of the fine, and we remit the matter to County Court to determine that amount. Present—Hurlbutt, J.P., Martoche, Smith, Centra and Fahey, JJ.