PEOPLE v. WASHINGTON

Appeal by defendant from a judgment of the County Court, Nassau County, rendered October 8, 1974, convicting him of driving while intoxicated, as a felony, upon his plea of guilty, and imposing a sentence, inter alia, of five years' probation and a $300 fine or three months in jail. Judgment affirmed as to the conviction; judgment reversed as to the sentence, on the law, and case remanded to the County Court for resentencing. The proper sentence to be imposed upon a conviction for driving while intoxicated, as a felony, is to be found in sections 55.10, 60.01 and 70.00 of the Penal Law and not in section 1192 Veh. Traf. of the Vehicle and Traffic Law (see People v Messinger, 35 N.Y.2d 987, affg 43 A.D.2d 15; People v Bouton, 40 A.D.2d 383). Thus, the sentence, which imposed both a fine and probation, was invalid as a matter of law. We find no merit in the argument that appellant was deprived of his right to a speedy trial; his failure to appear in court as scheduled, and his unexplained whereabouts thereafter, were the prime causes of the delay, which, in any event, did not prejudice him (see People v Taranovich, 37 N.Y.2d 442). Rabin, Acting P.J., Martuscello, Cohalan, Margett and Munder, JJ., concur.