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

123
KA 09-02381
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES SLATTERY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

JAMES SLATTERY, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (J. MICHAEL MARION OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered September 23, 2009. The judgment convicted
defendant, upon his plea of guilty, of driving while intoxicated, a
class D felony, aggravated unlicensed operation of a motor vehicle in
the first degree and unauthorized use of a vehicle in the third
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence and as
modified the judgment is affirmed, and the matter is remitted to Erie
County Court for resentencing.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of felony driving while intoxicated (Vehicle
and Traffic Law § 1192 [3]; § 1193 [1] [c] [ii]), aggravated
unlicensed operation of a motor vehicle in the first degree (§ 511 [3]
[a] [i]) and unauthorized use of a vehicle in the third degree (Penal
Law § 165.05 [1]). As defendant contends and the People correctly
concede, County Court misapprehended its discretion in determining
that the sentences for those offenses had to run consecutively to a
prior undischarged term of parole. That contention survives
defendant’s valid waiver of the right to appeal (see People v Hager,
213 AD2d 1008). Pursuant to Penal Law § 70.25 (1), the court had the
discretion to impose concurrent sentences (see People v Woodard, 201
AD2d 896), and “[t]he failure of the court to apprehend the extent of
its discretion deprived defendant of the right to be sentenced as
provided by law” (Hager, 213 AD2d at 1008). We therefore modify the
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                                                         KA 09-02381

judgment by vacating the sentence, and we remit the matter to County
Court for resentencing.




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
