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

364
KA 11-02123
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DANIEL SIERRA, DEFENDANT-APPELLANT.


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

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


     Appeal from a judgment of the Monroe County Court (James J.
Piampiano, J.), rendered September 15, 2011. The judgment convicted
defendant, upon his plea of guilty, of aggravated driving while
intoxicated, a class D felony.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of felony aggravated driving while intoxicated
(Vehicle and Traffic Law §§ 1192 [2-a] [a]; 1193 [1] [c] [ii]).
Contrary to defendant’s contention, County Court properly sentenced
him pursuant to Penal Law § 60.21 to a five-year period of probation
to run consecutively to his indeterminate term of imprisonment (see
Vehicle and Traffic Law § 1193 [1] [c] [iii]; People v Segatol-Islami,
121 AD3d 1575, 1577; People v O’Brien, 111 AD3d 1028, 1029).
“Inasmuch as the plain language of the statutes requires a sentencing
court to impose a period of probation or conditional discharge in
addition to any fine or term of imprisonment for convictions pursuant
to Vehicle and Traffic Law § 1192, the Legislature clearly intended
this type of cumulative sentence for felony driving while intoxicated
convictions” (People v Brainard, 111 AD3d 1162, 1164).




Entered:    March 27, 2015                         Frances E. Cafarell
                                                   Clerk of the Court
