           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
144
KA 11-01198
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DOUGLAS A. BUSH, DEFENDANT-APPELLANT.


JONES & MORRIS, VICTOR (MICHAEL A. JONES, JR., OF COUNSEL), FOR
DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered April 13, 2011. The judgment convicted
defendant, upon his plea of guilty, of driving while intoxicated, a
class D felony (two counts), and aggravated unlicensed operation of a
motor vehicle in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the conditional discharge
and ignition interlock device requirement and as modified the judgment
is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of, inter alia, two counts of felony driving
while intoxicated (Vehicle and Traffic Law §§ 1192 [2], [3]; 1193 [1]
[c] [ii]). Defendant contends that the portion of his sentence
imposing a three-year conditional discharge and an ignition interlock
device requirement is illegal inasmuch as he committed the offense
prior to the effective date of the statute imposing those
requirements. We agree, and we therefore modify the judgment by
vacating those provisions. Pursuant to the Laws of 2009 (ch 496, §
15), the amendments to, inter alia, Vehicle and Traffic Law § 1198 are
not applicable to defendant because he committed his offense before
November 18, 2009, the date of the enactment of those amendments. The
People’s reliance on People v Farrelly (92 AD3d 1290, lv denied 19
NY3d 996) is misplaced inasmuch as the record in that case reveals
that the defendant committed his offense after the date on which the
amendments were enacted.



Entered:   February 8, 2013                        Frances E. Cafarell
                                                   Clerk of the Court
