People v Faulcon

People v Faulcon 2013 NY Slip Op 05929 Decided on September 19, 2013 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: September 19, 2013
104625

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

JEROME FAULCON, Appellant.

Calendar Date: July 29, 2013
Before: Peters, P.J., Stein, McCarthy and Egan Jr., JJ.


Cliff Gordon, Monticello, appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.


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 AD3d 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 AD3d 1006, 1007 [2011], lv denied 17 NY3d 795 [2011]; see People v Ryan, 83 AD3d at 1130; see also People v Galietta, 75 AD3d 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.