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THE $1000 FINE FOR THE DWI COUNT WAS HARSH AND EXCESSIVE; THE FAILURE TO IMPOSE A FINE FOR AGGRAVATED UNLICENSED OPERATION WAS ILLEGAL; REFUSING TO SUBMIT TO A BREATH TEST IS NOT A COGNIZABLE OFFENSE (FOURTH DEPT).

The Fourth Department determined: (1) the $1000 fine imposed for the driving while intoxicated count (in addition to a period of incarceration) was harsh and excessive; (2) the sentence for aggravated unlicensed operation was illegal; and (3) refusing to submit to a breath test is not a crime:

… [T]he sentence imposed on count two of the indictment is illegal because a fine of between $500 and $5,000 is mandatory upon a conviction of aggravated unlicensed operation of a motor vehicle in the first degree, even where, as here, the court also imposes a sentence of incarceration (see Vehicle and Traffic Law § 511 [3] [b] …). …

… [W]e note that the Appellate Term, Second Department, has repeatedly stated that a defendant’s “refusal to submit to a breath test did not establish a ‘cognizable offense’ ” … . We agree, and we therefore further modify the judgment by reversing that part convicting defendant of count four of the indictment, vacating the plea with respect to that count of the indictment and dismissing that count. People v Bembry, 2021 NY Slip Op 06235, Fourth Dept 11-21-21

 

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