                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: December 11, 2014                     106268
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

DAVID G. BROTHERS,
                    Appellant.
________________________________


Calendar Date:   October 10, 2014

Before:   McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                               __________


     Lisa A. Burgess, Indian Lake, for appellant.

      Derek P. Champagne, District Attorney, Malone (Glenn
MacNeill of counsel), for respondent.

                               __________


Clark, J.

      Appeal from a judgment of the County Court of Franklin
County (Main Jr., J.), rendered April 29, 2013, convicting
defendant upon his plea of guilty of the crime of aggravated
unlicensed operation of a motor vehicle in the first degree.

      Defendant was charged with, among other things, one count
of aggravated unlicensed operation of a motor vehicle in the
first degree and two counts of driving while intoxicated
(hereinafter DWI). After waiving indictment, defendant agreed to
be prosecuted by superior court information (hereinafter SCI).
Defendant thereafter agreed to plead guilty to aggravated
unlicensed operation of a motor vehicle in the first degree and
one count of DWI in full satisfaction of all of the charges.
However, during the plea colloquy, County Court's inquiry only
                              -2-                106268

pertained to the aggravated unlicensed operation count, to which
defendant pleaded guilty and waived his right to appeal.
Nevertheless, the court imposed a sentence based upon convictions
of both aggravated unlicensed operation and DWI, sentencing
defendant to 1a to 4 years in prison plus a conditional
discharge upon release. Defendant now appeals.

      Initially, we disagree with defendant's contention that the
SCI was jurisdictionally defective. Specifically, defendant
argues that the SCI failed to allege all material elements of
aggravated unlicensed operation of a motor vehicle in the first
degree because the People did not state that the crime occurred
on a public highway (see Vehicle and Traffic Law § 511 [3] [a]).
While this claim survives defendant's guilty plea and appeal
waiver (see People v Place, 50 AD3d 1313, 1314 [2008], lv denied
11 NY3d 740 [2008]), no defect exists when the SCI incorporates
elements by specific reference to the crime's relevant statutory
authority, because such incorporation "constitute[s] allegations
of all the elements of the crime" (People v D'Angelo, 98 NY2d
733, 735 [2002]; see People v Binns, 82 AD3d 1449, 1450 [2011]),
while also giving the defendant "fair notice of the charges made
against him [or her]" (People v Ray, 71 NY2d 849, 850 [1988]
[internal quotation marks and citation omitted]). Here, although
the SCI failed to state that the road on which defendant was
driving was a public highway, it specifically referenced Vehicle
and Traffic Law § 511 (3) (a) and, as such, sufficiently
incorporated all of the specific elements of the crime.

      We do, however, agree with defendant that County Court
improperly sentenced him to a conditional discharge while
apparently under the mistaken belief that defendant had also
pleaded guilty to DWI (see Vehicle and Traffic Law § 1192 [2];
Penal Law § 60.21). As conceded by the People, conditional
discharge is an impermissible sentence for the crime of
aggravated unlicensed operation of a motor vehicle in the first
degree (see Vehicle and Traffic Law § 511 [3] [b]) and,
accordingly, defendant's sentence must be modified.

     McCarthy, J.P., Egan Jr., Lynch and Devine, JJ., concur.
                              -3-                  106268

      ORDERED that the judgment is modified, by vacating the
sentence of conditional discharge, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
