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

821
KA 13-01919
PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PETER GIACONA, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRIAN LEEDS OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered January 29, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of a controlled
substance in the third degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of criminal sale of a
controlled substance in the third degree (Penal Law § 220.39 [1]). In
appeal No. 2, defendant appeals from a judgment convicting him upon
his plea of guilty of two counts of vehicular assault in the second
degree (§ 120.03 [1]), and one count each of driving while intoxicated
(Vehicle and Traffic Law § 1192 [3]), and reckless driving (§ 1212).
In appeal Nos. 3 through 6, defendant appeals from four orders
directing him to pay restitution to the two car accident victims and
the hospital that treated them in connection with the judgment of
conviction in appeal No. 2.

     With respect to the judgments in appeal Nos. 1 and 2, our review
of County Court’s denial of defendant’s request for youthful offender
treatment is precluded by his waiver of the right to appeal, the
validity of which he does not contest (see People v Pacherille, 25
NY3d 1021, ___). However, we agree with defendant in appeal No. 2,
and the People correctly concede, that his challenge to the legality
of the sentence is not foreclosed by the valid waiver of the right to
appeal (see People v Graves, 96 AD3d 1466, 1466-1467, lv denied 19
NY3d 1026). Turning to the merits, defendant contends, and the People
further correctly concede, that the imposition of a five-year term of
probation with an ignition interlock device with respect to the
vehicular assault counts is illegal pursuant to Penal Law § 60.21 (see
                                 -2-                           821
                                                         KA 13-01919

People v Flagg, 107 AD3d 1613, 1614, lv denied 22 NY3d 1138), and we
therefore modify the judgment accordingly. Pursuant to section 60.21,
the mandatory five-year term of probation with an ignition interlock
device only applies to a defendant convicted of a violation of Vehicle
and Traffic Law § 1192 (2), (2-a) or (3) (see Flagg, 107 AD3d at
1614). Here, the proper remedy is to vacate the term of probation
imposed on the vehicular assault counts (see id.). We note, however,
that the court properly imposed the ignition interlock condition as a
component of the three-year term of probation on the conviction under
Vehicle and Traffic Law § 1192 (3). In addition, we agree with the
People that the order of commitment must be amended to reflect that
defendant’s term of postrelease probation is a period of three years
to commence immediately upon defendant’s release from imprisonment
(see Penal Law § 60.21; see generally People v Brooks, 46 AD3d 1374,
1374).

     With respect to appeal Nos. 3 through 6, we reject defendant’s
contention that the court erred in ordering him to pay restitution to
the treating hospital for the costs of medical care of the victims
injured as a result of defendant’s crimes (see generally People v
McDaniel, 219 AD2d 861, 861-862, lv denied 88 NY2d 850). We reject
defendant’s further contention that the court erred in ordering
restitution in an amount over $15,000, and we conclude that the court
properly exercised its discretion in ordering reimbursement for
medical expenses actually incurred by the victims injured as a result
of defendant’s crimes (see Penal Law § 60.27 [5] [b]). Finally,
defendant’s contention that one of the injured victims was required to
submit medical bills to a no-fault insurer in lieu of restitution is
without merit (see People v Wilson, 108 AD3d 1011, 1013; People v
Whitmore, 234 AD2d 1008, 1008; McDaniel, 219 AD2d at 861).

     We have considered defendant’s remaining contentions concerning
restitution and conclude that they are without merit.




Entered:   July 10, 2015                        Frances E. Cafarell
                                                Clerk of the Court
