PEOPLE v. O'BRIEN

Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: The People candidly concede that defendant's sentence of one year's incarceration and five years' probation for his conviction of two counts of felony driving while intoxicated was illegal (see, Penal Law § 60.01 [d]; § 65.00; see also, People v Curkendall, 141 A.D.2d 891; People v McIntyre, 135 A.D.2d 920). Defendant's sentence is therefore modified by vacating the provision imposing probation (see, People v Jackson, 144 A.D.2d 1031). Because defendant's sentence of probation was prohibited, that sentence cannot serve as a basis for a finding of a violation of probation (see, People v DeFrancesco, 136 A.D.2d 560).