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

512
KA 15-01365
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL J. REGATUSO, II, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DANIELLE C. WILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Michael M.
Mohun, J.), rendered May 13, 2015. The judgment convicted defendant,
upon a jury verdict, of criminal sale of a controlled substance in the
third degree, criminal possession of a controlled substance in the
third degree (two counts), criminal possession of a controlled
substance in the seventh degree and unlawful possession of marihuana.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the fine imposed for
criminal possession of a controlled substance in the third degree
under count 2 of the indictment and as modified the judgment is
affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon a jury verdict of, inter alia, criminal sale of a
controlled substance in the third degree (Penal Law § 220.39 [1]) and
two counts of criminal possession of a controlled substance in the
third degree (§ 220.16 [1]). In appeal No. 2, defendant appeals from
a judgment convicting him upon a jury verdict of, inter alia, seven
counts each of criminal sale of a controlled substance in the third
degree (§ 220.39 [1]) and criminal possession of a controlled
substance in the third degree (§ 220.16 [1]). County Court sentenced
defendant as a second felony offender to concurrent determinate terms
of incarceration, to be followed by a period of postrelease
supervision, and imposed fines aggregating $25,500.

     We reject defendant’s contention that the certificates of
conviction are at variance with the court’s pronouncement of the
sentence. The sentencing minutes reflect that the court imposed fines
for certain offenses, and those fines were then aggregated and
correctly recorded in the certificates of conviction. We reject
                                 -2-                           512
                                                         KA 15-01365

defendant’s further contention that a court may not aggregate fines
when it imposes concurrent terms of incarceration (see e.g. People v
Petell, 128 AD3d 1283, 1283; People v Miller, 57 AD3d 1009, 1009-
1010). We agree with defendant, however, that the fines are illegal
to the extent the court imposed a fine on both a conviction for
criminal sale of a controlled substance in the third degree and
criminal possession of a controlled substance in the third degree that
arose from a single act (see Penal Law § 80.15; People v Wiley, 67
AD3d 1370, 1372, lv denied 14 NY3d 845; People v Atwood, 2 AD3d 1331,
1332, lv denied 3 NY3d 636). We therefore modify the judgment in
appeal No. 1 by vacating the fine imposed on count 2 of the
indictment, and modify the judgment in appeal No. 2 by vacating the
fines imposed on counts 3, 5, 7, 9, 11, 13, and 15 of the indictment.




Entered:   June 17, 2016                        Frances E. Cafarell
                                                Clerk of the Court
