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

145
KA 11-02355
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHAUNCEY K. DEXTER, DEFENDANT-APPELLANT.


WAGNER & HART, LLP, OLEAN (JANINE FODOR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (ELIZABETH ENSELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered August 1, 2011. The judgment convicted
defendant, upon his plea of guilty, of driving while intoxicated, a
class E felony.

     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
Cattaraugus County Court for further proceedings in accordance with
the following Memorandum: Defendant appeals from a judgment
convicting him upon his plea of guilty of driving while intoxicated
(DWI) as a class E felony (Vehicle and Traffic Law §§ 1192 [2]; 1193
[1] [c] [i]). Defendant was sentenced to an indeterminate term of 1
to 3 years of incarceration followed by a one-year period of
conditional discharge with an ignition interlock device requirement.
Contrary to the contention of defendant, his sentence is not
unconstitutionally disproportionate to his offense. Although the
Court of Appeals in People v Broadie (37 NY2d 100, 111, cert denied
423 US 950) recognized that “a sentence that is ‘grossly
disproportionate to the crime’ may be considered cruel and unusual
punishment” (People v Holmquist, 5 AD3d 1041, 1042, lv denied 2 NY3d
800), we conclude that this is not one of those rare cases described
in Broadie. Defendant failed to preserve for our review his further
contention that the imposition of consecutive sentences of
imprisonment and conditional discharge with an ignition interlock
device are unconstitutional multiple punishments under Penal Law §
60.21 and Vehicle and Traffic Law §§ 1193 and 1198 (see People v
Rivera, 9 NY3d 904, 905; see also People v Davidson, 98 NY2d 738, 739-
740), and we decline to exercise our power to review that contention
as a matter of discretion in the interest of justice (see People v
Farrelly, 92 AD3d 1290, 1291, lv denied 19 NY3d 996).
                                 -2-                          145
                                                        KA 11-02355

     The sentence is not unduly harsh or severe, particularly in light
of defendant’s three prior felony DWI convictions (see People v
Edenholm, 9 AD3d 892, 893). We note, however, that the one-year
period of conditional discharge imposed by County Court is illegal
inasmuch as Penal Law § 65.05 (3) (a) provides that such period “shall
be” three years for felony offenses, and “[n]either County Court nor
this Court possesses interest of justice jurisdiction to impose a
sentence less than the mandatory statutory minimum” (People v Clark,
176 AD2d 1206, 1206-1207, lv denied 79 NY2d 854; see generally People
v Vidaurrazaga, 100 AD3d 664, 665). “ ‘Although this issue was not
raised before the [sentencing] court or on appeal, we cannot allow an
[illegal] sentence to stand’ ” (People v Davis, 37 AD3d 1179, 1180, lv
denied 8 NY3d 983). We therefore modify the judgment by vacating the
sentence, and we remit the matter to County Court to afford defendant
the opportunity to accept an amended lawful sentence or to withdraw
his guilty plea and thus be restored to his preplea status (see People
v Eron, 79 AD3d 1774, 1775-1776).




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
