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

171
KA 12-00536
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GEORGE J. PANEK, DEFENDANT-APPELLANT.


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

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Michael F.
McKeon, A.J.), rendered February 21, 2012. The judgment revoked
defendant’s sentence of probation and imposed a sentence of
imprisonment.

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

     Memorandum: Defendant appeals from a judgment revoking the
sentence of probation previously imposed upon his conviction of felony
driving while intoxicated ([DWI] Vehicle and Traffic Law §§ 1192 [3];
1193 [1] [c] [i]) and aggravated unlicensed operation of a motor
vehicle in the first degree (§ 511 [3] [a] [i]). Defendant was
sentenced to concurrent indeterminate terms of incarceration of 1 to 3
years on each count, and to a post-incarceration conditional discharge
and an ignition interlock device requirement for the DWI offense. At
the outset, we note that the certificate of conviction omits the
conviction of and sentence for aggravated unlicensed operation of a
motor vehicle in the first degree, as well as the sentence for the DWI
offense of a conditional discharge, and it must therefore be amended
accordingly (see People v Saxton, 32 AD3d 1286, 1286-1287).

     Defendant contends that the post-incarceration conditional
discharge does not apply to sentencing after a violation of probation,
and constitutes an illegal sentence. We reject that contention. Upon
revoking probation, County Court properly sentenced defendant to a
period of incarceration (see Penal Law §§ 60.01 [4]; 70.00 [2] [e];
[3] [b]). Pursuant to Penal Law § 60.21, the court was also required
to sentence defendant to a period of probation or conditional
discharge, to run consecutively to any period of imprisonment.
Inasmuch as section 60.21 applies “[n]otwithstanding [section 60.01
(2) (d)],” defendant’s contention that the sentence violated section
60.01 (2) (d) is without merit (see People v Oliver, 98 AD3d 751,
                                 -2-                          171
                                                        KA 12-00536

751).

     Defendant next contends that he should have been informed of the
conditional discharge “prior to entering his plea of guilty or his
admission to the violation of probation,” and thus the conditional
discharge with the ignition interlock device requirement should be
stricken. Insofar as defendant challenges his conviction following
his plea of guilty, that challenge is not properly before us because
he did not appeal from the original judgment (see People v Perna, 74
AD3d 1807, 1807, lv denied 17 NY3d 716). Defendant relies on People v
Catu (4 NY3d 242, 244-245) insofar as he contends that the conditional
discharge was a direct consequence of his admission to the violation
of probation, and that he therefore should have been advised of such
at the time of his admission. Assuming, arguendo, that we agree with
defendant, we conclude that the proper remedy would be vacatur of the
admission (see People v Hill, 9 NY3d 189, 191, cert denied 553 US
1048), and defendant does not seek that relief (see People v Primm, 57
AD3d 1525, 1525, lv denied 12 NY3d 820; People v Dean, 52 AD3d 1308,
1308, lv denied 11 NY3d 736). Finally, contrary to defendant’s
contention, the sentence is “not unduly harsh or severe, particularly
in view of defendant’s [five] prior DWI convictions” (People v
Edenholm, 9 AD3d 892, 893).




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