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

1477
KA 11-00991
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JOHN D. WILLIAMS, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


LIPSITZ GREEN SCIME CAMBRIA, LLP, BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Orleans County Court (James P.
Punch, J.), rendered February 14, 2011. Defendant was resentenced
upon his conviction of driving while intoxicated, a class E felony.

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

     Memorandum: On appeal from a resentence following his conviction
upon a plea of guilty of felony driving while intoxicated (Vehicle and
Traffic Law §§ 1192 [3]; 1193 [1] [c] [i]), defendant contends that
the ignition interlock device (IID) component of his sentence should
be vacated. As defendant correctly concedes, County Court informed
him prior to his plea that his sentence would include an IID
component, but defendant contends that the court’s failure to inform
him of the length of time he would be required to maintain an IID in
his vehicle rendered his plea involuntary. Defendant failed to
preserve that contention for our review (see People v Murray, 15 NY3d
725, 726-727). In any event, even assuming, arguendo, that
defendant’s contention has merit, we conclude that defendant would not
be entitled to the remedy he seeks, i.e., vacatur of the IID component
of his sentence, because the remedy for an involuntary plea is vacatur
of the plea itself (see generally People v Catu, 4 NY3d 242, 245).
Furthermore, defendant would not in any case be entitled to vacatur of
that component of his sentence inasmuch as the IID requirement is
mandated by law (see § 1193 [1] [c] [iii]).

     Finally, defendant’s sentence is not unduly harsh or severe.


Entered:    February 1, 2013                       Frances E. Cafarell
                                                   Clerk of the Court
