PEOPLE v. KROPP

It is hereby ordered that the judgment so appealed from is unanimously modified on the law by vacating the sentence imposed for aggravated unlicensed operation of a motor vehicle in the third degree and as modified the judgment is affirmed, and the matter is remitted to Genesee County Court for resentencing on that offense.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of felony driving while intoxicated (Vehicle and Traffic Law § 1192; § 1193 [1] [c] [former (ii)]) and aggravated unlicensed operation of a motor vehicle in the third degree (§ 511 [1]). Contrary to defendant's contention, the bargained-for sentence of incarceration imposed by County Court is not unduly harsh or severe. "We are constrained, however, to vacate the sentence" imposed for aggravated unlicensed operation of a motor vehicle in the third degree ( People v John, 288 AD2d 848, 850, lv denied 97 NY2d 705; see People v Figueroa, 17 AD3d 1130, 1131, lv denied 5 NY3d 788 [2005]; People v Fehr, 303 AD2d 1039, 1040, lv denied 100 NY2d 538). The comments of the court in imposing a $200 fine with respect to that offense reflect "`the court's misapprehension that it had no ability to exercise its discretion' in determining whether to impose a fine" ( John, 288 AD2d at 850). We therefore modify the judgment accordingly, and we remit the matter to County Court for resentencing on that offense.