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

175
KA 11-00329
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

SCOTT P. FARRELLY, DEFENDANT-APPELLANT.


ADAM H. VAN BUSKIRK, AURORA, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (DIANE M. ADSIT OF
COUNSEL), FOR RESPONDENT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE
OF COUNSEL), IN HIS STATUTORY CAPACITY UNDER EXECUTIVE LAW § 71.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered February 1, 2011. The judgment convicted
defendant, upon his plea of guilty, of driving while intoxicated, a
class D felony and unlawful fleeing a police officer in a motor
vehicle in the third degree.

     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 driving while intoxicated ([DWI]
Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [ii]) and unlawful
fleeing a police officer in a motor vehicle in the third degree (Penal
Law § 270.25). We reject defendant’s contention that the restitution
order in favor of one of the victims does not correspond with the
conditions of restitution set at sentencing. County Court assured
defendant at sentencing that he would not have to pay restitution
twice in the event that the victim recovered insurance proceeds for
the damage defendant caused to his house, and the restitution order
does not conflict with that statement. Defendant’s further contention
that the court erred in ordering restitution in excess of the
statutory cap is without merit inasmuch as defendant consented to the
amount of restitution (see § 60.27 [5] [a]).

     Defendant contends that he should not have been sentenced to a
period of probation with an ignition interlock device requirement
following his sentence of incarceration. He contends that only
aggravated DWI offenders (see Vehicle and Traffic Law § 1192 [2-a])
are subject to the mandatory supervision and ignition interlock device
requirements set forth in, inter alia, Vehicle and Traffic Law § 1198
for crimes committed prior to August 15, 2010 and that non-aggravated
                                 -2-                           175
                                                         KA 11-00329

DWI offenders such as himself are subject to those requirements only
for offenses committed on or after August 15, 2010. We reject those
contentions and conclude that defendant misreads the relevant
statutes. Pursuant to L 2009, ch 496, § 15, the amendments to, inter
alia, Vehicle and Traffic Law § 1198, are applicable to defendant
inasmuch as he was sentenced after they took effect, i.e., after
August 15, 2010. Defendant failed to preserve for our review his
further contentions that those amendments are unconstitutional in
several respects (see generally People v Rivera, 9 NY3d 904, 905;
People v Davidson, 98 NY2d 738, 739-740; People v Korber, 89 AD3d
1543), and we decline to exercise our power to review those
contentions as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).




Entered:   February 17, 2012                   Frances E. Cafarell
                                               Clerk of the Court
