        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1142
KA 14-00127
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALAN D. NEAL, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

ALAN D. NEAL, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal 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.

     It is 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
affirmed.

     Memorandum: 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 [3]; 1193 [1] [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 AD3d 1403, 1403, lv denied 15
NY3d 956; People v Baker, 49 AD3d 1293, 1293, lv denied 10 NY3d 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 NY3d 725, 726-727).

     As the 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
                                  -2-                          1142
                                                          KA 14-00127

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 AD3d 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 fine.

     With 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 AD3d 1475, 1477, lv denied 18
NY3d 991; see People v Mitchell, 132 AD3d 1413, 1416, lv denied 27
NY3d 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 NY2d 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 AD3d 1383, 1384, lv denied 25 NY3d
1207).

     All 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.”

     Here, 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 and that the matter should be remitted to Monroe County Court
for resentencing (see People v Smith, 309 AD2d 1282, 1282).




Entered:   March 24, 2017                        Frances E. Cafarell
                                                 Clerk of the Court
