People v Redmond (Tariq)

[*1] People v Redmond (Tariq) 2021 NY Slip Op 50649(U) Decided on July 2, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 2, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ
2019-1702 K CR

The People of the State of New York, Respondent,

against

Tariq Redmond, Appellant.

Brooklyn Defender Services (Alexandra Ferlise, Anton Metlitsky, Alec Schierenbeck and Craig McAllister of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Gamaliel Marrero and Cindy Horowitz of counsel), for respondent.

Appeal from an amended judgment of the Criminal Court of the City of New York, Kings County (Adam D. Perlmutter, J.), rendered October 23, 2019. The amended judgment, after a hearing, revoked a sentence of a conditional discharge previously imposed by that court following defendant's plea of guilty to driving while ability impaired, upon his admission that he had violated a condition thereof, and resentenced defendant to 14 days' imprisonment and a conditional discharge requiring defendant to install and maintain an ignition interlock device on any vehicle he may own or operate for one year.

ORDERED that the amended judgment is modified, on the law, by striking the conditional discharge requiring defendant to install and maintain an ignition interlock device on any vehicle he may own or operate for one year; as so modified, the amended judgment is affirmed.

After defendant pleaded guilty to driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]) and driving while ability impaired (Vehicle and Traffic Law § 1192 [1]) and successfully completed several conditions of the plea agreement, the court, in accordance with the terms of the plea agreement, vacated defendant's plea to the charge of driving while intoxicated so that only the charge of driving while ability impaired remained. The court imposed the promised sentence which, insofar as is relevant here, included a one-year conditional discharge requiring defendant to install and maintain an ignition interlock device (IID) on any [*2]vehicle he may own or operate for one year. On October 23, 2019, the Criminal Court resentenced defendant to 14 days' imprisonment and a one-year conditional discharge requiring defendant to install and maintain an IID through October 22, 2020. Defendant served the 14-day term of imprisonment, but obtained a stay of the conditional discharge.

On appeal, defendant argues, among other things, that the Criminal Court lacked the authority to resentence him to a conditional discharge requiring him to install and maintain an IID, as he was only convicted of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]).

Penal Law § 65.10 (2) (k-1) provides that a court may impose a condition to install and maintain a functioning IID only where the defendant "has been convicted of a violation of subdivision two, two-a or three of section eleven hundred ninety-two of the vehicle and traffic law, or any crime defined by the vehicle and traffic law of this chapter of which an alcohol-related violation of any provision of section eleven hundred ninety-two of the vehicle and traffic law is an essential element." Here, defendant's conviction of driving while ability impaired pursuant to Vehicle and Traffic Law § 1192 (1), a traffic infraction, falls outside the scope of Penal Law § 65.10 (2) (k-1) (see People v Levy, 91 AD3d 793 [2012]). Consequently, the imposition of a conditional discharge requiring defendant to install and maintain an IID for one year is not authorized (compare Vehicle and Traffic Law § 1193 [1] [a], with Vehicle and Traffic Law § 1193 [1] [b] [ii]) and must be stricken.

Defendant's remaining argument, raised in the alternative, has been rendered academic in light of our determination.

Accordingly, the amended judgment is modified by striking the conditional discharge requiring defendant to install and maintain an ignition interlock device on any vehicle he may own or operate for one year.

ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 2, 2021